Suspension or Expulsion for Actual or Attempted Hate Violence

By Michelle Ball, California Education Attorney for Students since 1995

Parents every day face suspensions of their children for a myriad of reasons, some legitimate and some not so legitimate.  One section I see infrequently used by schools is California Education Code §48900.3, which allows suspension or expulsion for "hate violence."  This could be good or bad depending on who you represent.

Specifically this section states:

...[A] pupil in any of grades 4 to 12, inclusive, may be suspended from school or recommended for expulsion if the superintendent or the principal of the school in which the pupil is enrolled determines that the pupil has caused, attempted to cause, threatened to cause, or participated in an act of, hate violence... [Ed §48900.3]

The Education Code looks to the criminal code (Penal Code) in California to define this term "hate violence" (see Ed Codes §§48900.3 and 233 and Penal Codes §§422.55 422.6, 422.7, 422.75).  This makes it a bit hard for the average individual to track, and perhaps even school employees to discern, what 'hate violence" IS.

First, although the word "violence" is included in the Education Code, when one reviews the relevant Penal Codes, it is clear that no actual violence needs to happen for a suspendable or expellable offense to occur.  Unfortunately, only an "attempt" or "threat" of hate violence could be enough.

Basically, a student may be guilty of  "hate violence" if that child interferes with another person's constitutional rights (not a small concept here for a student or school employee to fathom- law libraries are filled with large dusty law books defining "constitutional rights") because of their "actual or perceived characteristics"including:

(1) Disability.

(2) Gender.

(3) Nationality.

(4) Race or ethnicity.

(5) Religion.

(6) Sexual orientation.

(7) Association with a person or group with one or more of these actual or perceived characteristics. [Penal  Code 

§

422.55]

I rarely, if ever, see this section used, at least not as the main charging allegation, but it would apply perhaps when a student is targeted with malicious acts due to being a disabled student (something I DO frequently see) or due to their ethnicity or other protected characteristic(s).  It could also apply if a student's Free Speech rights were cut because the student was not heterosexual, or if a student were cut off from a group (Freedom of Association) due to their race.

This section applies starting in the fourth grade, similar to sexual harassment offenses, so your third grader should not see this section on any suspension form.  

As far as allowing a student to be punished for an "attempted" or "threatened" hate violence, this is a tad unusual, as the majority of sections in the Education Code allowing suspension or expulsion do not allow "attempts" to commit an act to be a basis for discipline.  This means if someone throws a water balloon and attempts to hit someone due to their religion or race but misses, they could conceivably be punished.  

Now, I wonder how much education really goes on in schools about "hate violence" and breach of "constitutional rights."  I thought United States History was not until senior year of high school and if so, students will need to be better informed of things that could be "hate violence."  Probably they get just a single brief assembly in the beginning of the year which everyone promptly forgets.  Just another in the long list of punishments our kids could be subject to in the wacky school universe!

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 - Suspension or Expulsion for Actual or Attempted Hate Violence

Imitation Firearms, School Discipline And Changes To Penal Code 16700

By Michelle Ball, California Education Attorney for Students since 1995

On January 1, 2016, Penal Code section 16700, regarding "imitation firearms," changed and will potentially help students facing discipline for possession of "imitation firearms." 

Air soft guns, BB guns and other similar devices have proven irresistible items for some students. What fun to get one of these "play" guns and go shoot some targets, right?  Unfortunately, these students have ended up in the school office and usually in front of expulsion panels when possessing these devices on campus or within the zone of a school's area of control (to/from school, field trips, near school, etc.).  

Schools look toward many legal codes to get their guidance.  Often, definitions in the Education Code are vague and other codes may need to be looked to for clarification.  The California Penal Code (lists the criminal statutes applicable in California) is a frequently used reference.  

Per Education Code, section 48900(m), a student may be suspended or expelled for possession of an "imitation firearm."  This section defines what an imitation firearm is as:

"a replica of a firearm that is so substantially similar in physical properties to an existing firearm as to lead a reasonable person to conclude that the replica is a firearm."  

This is not that clear, and is similar to the definition in Penal Code §16700(a) of an "imitation firearm."

Penal Code §16700 subsection (b) changed on January 1, 2016.  Previously, this section stated BB guns were not "imitation firearms," but offered no clarification.

This subsection now better defines what is not an "imitation firearm" (in penal code terms):

"'imitation firearm' does not include any of the following:

(1)  A nonfiring collector's replica that is historically significant, and is offered for sale in conjunction with a wall plaque or presentation case.

(2)  A spot marker gun which expels a projectile that is greater than 10mm caliber.

(3)  A BB device that expels a projectile, such as a BB or pellet, that is other than 6mm or 8mm caliber.

(4)  A BB device that is an airsoft gun that expels a projectile, such as a BB or pellet, that is 6mm or 8mm caliber which meets the following:

(A)  If the airsoft gun is configured as a handgun, in addition to the blaze orange ring on the barrel required by federal law, the airsoft gun has a trigger guard that has fluorescent coloration over the entire guard, and there is a two centimeter wide adhesive band around the circumference of the protruding pistol grip that has fluorescent coloration.

(B) If the airsoft gun is configured as a rifle or long gun, in addition to the blaze orange ring on the barrel required by federal law, the airsoft gun has a trigger guard that has fluorescent coloration over the entire guard, and there is a two centimeter wide adhesive band with fluorescent coloring around the circumference of any two of the following:

   (i) The protruding pistol grip.

   (ii) The buttstock.

   (iii) A protruding ammunition magazine or clip.

(5) A device where the entire exterior surface of the device is white, bright red, bright orange, bright yellow, bright green, bright blue, bright pink, or bright purple, either singly or as the predominant color in combination with other colors in any pattern, or where the entire device is constructed of transparent or translucent materials which permits unmistakable observation of the device's complete contents."

The clarification may help in getting an "imitation firearm" charge dropped in school discipline matters.  This change does not mean, however, that students won't face other school or juvenile/criminal charges, particularly if a BB or airsoft device is possessed on a school campus. (still a misdemeanor under Penal Code §626.10). However, hopefully, this will prove useful for administrators and students when evaluating future discipline matters.  We shall see.

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 - Imitation Firearms, School Discipline And Changes To Penal Code 16700

Sexual Battery As A Basis For Expulsion, Suspension, Or Other School Discipline

By Michelle Ball, California Education Attorney for Students since 1995

I often speak with parents who are shocked and dismayed that their child has been alleged to have committed a sexual battery.  This word and allegation seem to be thrown around willy nilly without thought or understanding for what the REAL definition of sexual battery might be.  As such, understanding what "sexual battery" actually means is important and should be understood by everyone, lest such an allegation mar a student's record and reputation for life.

I am frequently surprised when I see suspension forms and/or expulsion recommendations containing the allegation of student "sexual battery."  This allegation is very heavy, and is specifically defined in the Education and Penal Codes.  This term should not be used unless proof actually exists to support the claim.  

California Education Code §48900(n) authorizes schools to suspend or expel students for sexual battery.  Rather than contain a definition in the Education Code, §48900(n) references California Penal Code section §243.4 for a definition of sexual battery.

Per Penal Code §243.4 the elements of sexual battery, in a nutshell, are: 

SEXUAL BATTERY occurs if:
-- A person touches a victim's intimate part and/or forces the victim to touch them or someone else, AND
--  This is against the will of the victim, AND
--  The touching is for the purpose of sexual arousal, gratification, or abuse, AND the act occurs:
* While the victim is unlawfully restrained, OR
* While the victim is institutionalized for medical treatment and is seriously disabled and/or medically incapacitated, OR 
* The victim is unconscious and is touched by a professional who falsely represented the touching was for a professional purpose.

[please note this is my summary only and is not a quote of the statute- please click link to get complete code]

Now which of these MAY apply with California students?  Any, but the one which would typically fit in a school setting is touching while a person is unlawfully restrained, correct?  The second scenario (institutionalized touching) could potentially occur if the victim and student were e.g. placed in residential treatment or the student was visiting a hospital, which is an uncommon occurrence.  The third one (professional) seems to apply to e.g. therapists, doctors, or other such individuals.

If the charge of sexual battery is levied against a student, the parents need to immediately bring the matter to an education attorney to review the facts and circumstances so this allegation can be evaluated and confronted promptly.  If not, the student may have this heinous allegation haunt them for years to come. They may also be cited by the police for alleged sexual battery when none occurred.  

Additionally, parents may be talked into signing an agreement (expulsion, suspension, behavior contract, etc.) which contains a school sexual battery charge.  Or, if they choose instead to go to e.g. an expulsion hearing, they will present their defense of "no sexual battery" to an expulsion panel of non-legal personnel (district employees) who may not grasp just WHAT a sexual battery is and/or whether the student involved actually sexually battered someone.  Even if a parent brings the law with them, or attempts to explain what a sexual battery is to the expulsion panel, they may not be listened to as they are not attorneys.  As attorneys are the only ones licensed to interpret the law, without an attorney, a parent's best argument of NO SEXUAL BATTERY, may still fall on deaf ears.

Parents, it is vital that you seek out legal help if your child has the charge of sexual battery levelled against him or her.  Failing to do so, can have horrible consequences and your child may be marred by such allegations for life.  Don't make the mistake of misunderstanding just what you are getting into when facing a sexual battery allegation.

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 - Sexual Battery As A Basis For Expulsion, Suspension, Or Other School Discipline