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?

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

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

Mandatory Vaccinations For School: Who Will Be Excluded And Parental Options

By Michelle Ball, California Education Attorney for Students since 1995

Most California public school students must be fully vaccinated to attend public or private classroom-based schools.  If a student is not vaccinated, or does not fit within an exemption, they will be excluded from school until proof of vaccination is submitted.  As a majority of children are vaccinated already, most parents will yawn and send their kids to school.  However, what will happen if a student missed even one shot?  Are there any options if a parent does not want to vaccinate their child for the student to attend regular school?  

The list of required vaccinations is outlined in California Health and Safety Code section 120325 and 120335 and includes slightly different requirements if a student is entering classroom-based school in seventh grade or will start under the new law in transitional kindergarten through sixth grade.  The vaccinations required if a student enters prior to seventh grade are:

     (1) Diphtheria.
     (2) Hepatitis B.
     (3) Haemophilus influenzae type b.
     (4) Measles.
     (5) Mumps.
     (6) Pertussis (whooping cough).
     (7) Poliomyelitis (polio)
     (8) Rubella.
     (9) Tetanus.
     (10) Varicella (chicken pox).

If a student is unvaccinated when they start seventh grade, they do not have to receive the Hepatitis B vaccination.  A presumption may be made that if a student enters beyond seventh grade, this also applies, but the law does not address this.

If a parent missed one of the required vaccinations, or failed to complete all required vaccination administrations (e.g.missed one of the shots in a series), the student may be excluded from school until the vaccination is completed.  The student also may be allowed to continue attending so long as they seek vaccinations within a certain time period (unspecified).

If a parent does not obtain the vaccination within any offered time period, or is not vaccinated promptly, and the parent does not transfer their child to a non-classroom based school or program, it is possible the student will be subject to not only continued exclusion, but ironically, potential truancy breach allegations (breach of mandatory compulsory education laws requiring full time attendance for ages of 6-18 with student being potentially labelled truant after 3 missed days).  As such, any student excluded will be in a bit of a time crunch and will need to act quickly.

There are a few ways around the legal requirement that a child be vaccinated to attend school:

1)  EXEMPTION AND WITHIN GRADE SPAN:  If a parent submitted exemption paperwork prior to January 1, 2016, their child may continue attending the current "grade span" unvaccinated.  Grade spans outlined in the law are from birth to preschool, transitional kindergarten to sixth grade, and seventh through twelfth grade (see CA Health & Safety section 120335(g)).  This means a student entering eighth grade in the fall of 2016 unvaccinated, with a personal belief exemption on file prior to January 1, 2016, may attend through high school.  However, a student entering seventh grade in the fall of 2016 unvaccinated with a personal belief exemption on file is out of luck and must be fully vaccinated.

2)  MEDICAL EXCUSE:  If parents provides a physician's opinion that their child cannot be vaccinated for medical reasons the student may attend unvaccinated (see CA H & S 120370).

3)  SPECIAL EDUCATION:  If a student is a special education student, the law states it "does not prohibit" them from receiving their special education and related services.  The California Department of Health has clarified in their Frequently Asked Questions page, stating:  "Students who have an individualized education program (IEP) should continue to receive all necessary services identified in their IEP regardless of their vaccination status."  There remains some grey area here, and the matter will only be clarified over time and/or by a court or state agency.

4)  ATTENDANCE AT EXEMPT SCHOOL:  Students may also avoid vaccination requirements by attending home-based private schools or public independent study programs with no classroom-based instruction.  An example of this could be seen in an independent study charter or private school where a student remains home for instruction from their parent.  Independent study via a traditional public school may also meet this requirement, so long as no classroom-based instruction is part of the program.

A lawsuit has been filed attempting to reverse the vaccination law based on the right to an education (see for example, Goss v. Lopez 419 U.S. 565).  However, as of right now, the California mandatory vaccination laws, some of the most restrictive in the United States, remain in effect.

The drama and confusion which will unfold in this process will be difficult for some parents.  Hopefully not too many students will be left in the dark or kicked out of their school while it all shakes out.

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 - Mandatory Vaccinations For School: Who Will Be Excluded And Parental Options

Nine Things NOT To Do At School and One To Do

By Michelle Ball, California Education Attorney for Students since 1995

I am continuously amazed at all the issues which plague students in school and the things which they get disciplined for daily.  I also find that parents too often "trust" the schools to do the right thing until the day they end up in my office.  As such, I thought I would make a list of some of my top things students and parents should NOT do.  This is certainly not an exhaustive list by any means, but contains items which sometimes get overlooked.  Frankly, I could probably list 100 or more "do nots," but 9 seemed enough for the day. 

1)  Do NOT forget your pocket knife in your pocket after camping or weekend activities, throw the same pants on, and bring the knife to school.  Can you say "expulsion recommendation?"

2)  Do NOT throw items which are improper on campus into your backpack "just for the weekend."  Inevitably these things get forgotten about and brought to school.  Only bad things happen after that.

3)  Despite students free speech rights, watch what you say or draw at school or in cyberspace while a student.  With all the terrible school shootings, schools are hyper-vigilant about "hit lists" and art which may depict people getting injured at school.  

4)  Do NOT count on the schools to "do the right thing."  No, that expulsion panel will not "see it your way" or "be reasonable."  Expect the worst and prepare for it.

5)  Do NOT NOT NOT trust the school to be the sole educator of your child.  Parents need to pick up a lot of slack as if they do not, their child may get left behind in their education and even labelled "learning disabled" due to being behind. 

6)  Do NOT "label" your child with a psychiatric condition or disability just because the school says you have to or punishes them constantly.  I have seen energetic 5 year olds suspended repeatedly and parents who felt forced to "label" them with a disease to keep them in school.  Labels have long term consequences.

7)  Do NOT allow your child to give verbal or written statements (usually requested during investigations) to the school.  Anything they say showing they did something wrong WILL be used against them.  Teach them to reply politely asking that you, the parent, be called.

8)  Do NOT let your kids get chummy with school personnel.  No, your teacher should not be taking your son for pizza, having them over for movies, or otherwise having private interactions with them.

9)  Do NOT put your child's education on auto pilot.

TO DO:  know your options when it comes to your kids and their education.  Explore placements other than just the public schools, such as charter schools, independent study, private home schools, and other school options for your child. Their education is key to their future success and you, the parent, are ultimately responsible for the consequences of their not being educated.  They are in school a short time.  Be sure to make the most of it, and of them.

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

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 - Nine Things NOT To Do At School and One To Do

Social Media, Texting, Schools And Discipline: Students Beware

By Michelle Ball, California Education Attorney for Students since 1995

With the explosion of social media sites, such as Facebook, Twitter, and the like, along with almost constant texting and other electronic communication between students, schools have entered a new era of discipline.  Parents need to be aware of this and caution their children about who may be watching (or find out about) what they post, text, email, or otherwise communicate.

It used to be that schools would hear a report of nefarious activity and would only have traditional investigation techniques to rely on (interviews, searches).  No more.  Now they have "written" evidence available on the internet and phones. Schools still have to conduct their version of an investigation, however, their investigations often become much easier with the proof lingering on electronic devices and phones.

Postings can be misinterpreted as somehow being sources of substantial disruption or threats to the school which are expulsion-worthy.  For example, encouraging another student in a chat to handle a teacher problem by stating "get her" (meaning "handle it"), or laments to a "friend" containing a negative opinion about a teacher, may be mistakenly deemed threats of harm.  Both students described were placed up for expulsion for such slips of the tongue which were not intended for anyone beyond the audience (friend) nor as threats of any kind.

I fought and got both students back in school with no expulsion, but this would not have happened without attorney intervention and return can never be certain.  In the "old" days (not that long ago), such statements would vanish the minute they were uttered verbally to another student and would never get reported.  No more. Statements on-line or on a student's phone don't disappear.  Even if deleted on one student's device, they may remain on another student's computer or phone and can come back to bite.

I have had students in my office up for expulsion who thought a Facebook post was "private" and that only their "friends" could review it.  However, students find out the hard way that their "friends" parents may be reading their posts and sending them to the school, or a friend may have their phone searched.  An expulsion recommendation may ensue after the communications are read.

My best advice for parents who do not want to see themselves hauled in with a suspension or expulsion for matters which seemed out of reach, is to talk to your children about what NOT to post.  Students should first be informed that NOTHING THEY POST ON THE INTERNET OR TEXT, EMAIL, ETC. IS PRIVATE, regardless of what they may think.  Whether they can be disciplined for it legally or not is a whole different matter.  Students need to simply be cautions about what they post.  For, although the First  Amendment DOES still exist, caution can help a student avoid discipline for "threatening" (or other) comments altogether.

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

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 - Social Media, Texting, Schools And Discipline: Students Beware

College Free Speech on Campus Case- Yu V. University of La Verne

By Michelle Ball, California Education Attorney for Students since 1995

This week, the California Court of Appeals, Second District, issued a decision in the matter of Yu v. University of La Verne.  This case, involving a private college and law school, is very interesting and explores the free speech rights of college students.  It also may be applied outside of its limited forum (private university) in the future.

Yu involved law student Katrina Yu who was punished for alleged plagiarism and academic dishonesty when she submitted an assignment which contained verbatim internet content.  The assignment also contained content alleged to have been copied from another student.  In May of 2010, Yu and three other law students were informed that they were being investigated for plagiarism and academic dishonesty.  While the other university students involved negotiated an unknown outcome, Yu took her matter to a three panel hearing within La Verne.

After the hearing, the panel issued a decision where Yu was to receive no credit for the class and a "0" grade on the record.  Yu appealed to the Dean.  In the La Verne policies, it states that the Dean may increase a student's punishment.

The Dean reviewed and raised Yu's punishment to a year suspension and a letter of censure, presumably along with the other punishments recommended by the panel.

Yu thereafter filed a request for a preliminary injunction (order from the court) to halt the implementation of the Dean's punishment.  The reason alleged was that Yu had been punished for the exercise of her free speech (aka First Amendment) rights for filing an appeal to the Dean (e.g. she alleged that her punishment was increased ONLY because she appealed).  The request for preliminary injunction was filed under Education Code section 94367.

Yu's request was denied by both the trial court and the Court of Appeals.  The Court of Appeals found that Yu's communication to the Dean was within Yu's free speech rights, but that she had not shown that she was punished solely for her exercise of speech to the Dean, as required by 94367.  They denied her request.

This case if very interesting and useful as far as the discussion of the free speech rights of college students.  It also holds a lesson in what can happen if a plea deal is not accepted.  College students should go into their appeals cautiously as the outcome can be more than the student bargained for and can involve a punishment not previously contemplated.

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

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 - College Free Speech on Campus Case- Yu V. University of La Verne