14 Steps To Attack A School Suspension

By Michelle Ball, California Education Attorney for Students since 1995

 

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

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

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

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

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

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

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

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

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

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

8)  Review these.

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

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

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for the student, arguments, and what is desired: the student returned to school now (if still out), and the suspension rescinded (reversed) and expunged.

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

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

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

Do it! 

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

Best,

 

Michelle Ball

Education Law Attorney 

 

LAW OFFICE OF MICHELLE BALL 

717 K Street, Suite 228 

Sacramento, CA 95814 

Phone: 916-444-9064 

Email:help@edlaw4students.com 

Fax: 916-444-1209

Website, Blog, Twitter, Youtube, Facebook, LinkedIn

 

Please see my disclaimer on the bottom of my blog page. This is legal information, not legal advice and no attorney-client relationship is formed by this posting.  This blog may not be reproduced without permission from the author and proper attribution of authorship. This blog may not reflect the current state of the law.

READ MORE - 14 Steps To Attack A School Suspension

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

How To File An Office For Civil Rights Complaint Which Will Actually Get Investigated

 By Michelle Ball, California Education Attorney for Students since 1995

If a student has faced discrimination in their school or college, they or their parent may want to file a complaint with the United States Department of Education, Office for Civil Rights (OCR) to get their school investigated and corrected.  Simple.

Not so fast.  

Its simple to file, but not always simple to get a filing accepted by OCR, such that they actually investigate the school or college.  OCR does not take every complaint that floats their way.  Instead, initial submissions, to be accepted, must clearly lay out a true case of discrimination or retaliation.  Otherwise, an OCR filing may be rejected and the school issues unresolved.

When preparing to file an OCR discrimination claim, parents and students need to think like lawyers.  What does this mean?  Well, what do lawyers gather to prove their cases?  Statements or summaries from witnesses, documents proving the facts of what occurred, reports, and/or anything that legitimately shows clear evidence of wrongdoing.

A very good timeline and description of the facts, without a lot of emotion or guessing, is important for OCR to understand what the parent or student believes is occurring.  This summary should describe what happened, who is believed to have done what, and specifics, such as the time, date, location, and people alleged to have been involved.  This summary can be attached to or inserted into the initial OCR complaint form.

A parent or student also needs to attach all evidence they gathered proving what occurred.  Do they have email from a teacher showing discrimination is going on, or a picture that was legally taken, or a report card that shows the issues?  Do they have letters to the school, texts with details, or even letters or statements from witnesses?  If so, these should be forwarded with the initial complaint if possible.

An example of a poor statement could be:

"My son was discriminated against by X school on the playground."  [not so good]

versus

"On February 1, 2021, my son was with a group of boys at X school during lunch, who all stole money together and none of them have past discipline incidents.  My son has ADHD and is in special education and the other four boys are not.  My son is the only boy who was suspended and the Principal called  him a "waste of special education money" when he suspended him, which was witnessed by the school secretary Madge who emailed me (see attached email, suspension form, and my son's summary of what happened written immediately afterwards).  Last month the lady in the lunch room told my son she hated special ed kids and put him at the end of the lunch line"  [much better]

It is clear when reviewing the two versions of the same situation, that one is more convincing than the other, as it has specific facts and documents backing the claims attached.  This is the way to approach an OCR filing to try to get them to pick it up and investigate the discriminating school or college.

So get gathering the facts and proof and get filing.  Schools don't want to hear from OCR, as OCR can make their lives difficult and can even cut funding.  If enough students and parents filed discrimination claims, schools and colleges would change for the better and all students would face a more tolerant environment in the future.

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 To File An Office For Civil Rights Complaint Which Will Actually Get Investigated

Possession of Nicotine or Tobacco As Basis For School Discipline

By Michelle Ball, California Education Attorney for Students since 1995

Talk to many in our culture today about nicotine products and the public schools and you may hear:  "So what, the kid's smoking, isn't that something every teen does?"  Not really, and if they do, it should not be at school or involving school.  Tobacco or similar products cannot be stashed for a friend, thrown in a backpack to use later, chewed, smoked, or otherwise used at school, at school events, going to or coming from school, etc.  If they are, and the student is caught, the student can be suspended or even expelled.

Per the California Education Code, which outlines all bases for suspension and expulsion of students, one basis for discipline is:

A pupil shall not be suspended from school or recommended for expulsion, unless the superintendent of the school district or the principal of the school in which the pupil is enrolled determines that the pupil has...

(h) Possessed or used tobacco, or products containing tobacco or nicotine products, including, but not limited to, cigarettes, cigars, miniature cigars, clove cigarettes, smokeless tobacco, snuff, chew packets, and betel*. [Education Code section 48900(h)]

This code also encompasses e-cigarettes and vape pens, and all manner of things which may fit under the "nicotine" or nicotine-like umbrella.  Note the code states that the list is not exclusive "including, but not limited to..." which means it is a wide-open code and will allow a school suspension for many products not listed.

The California legislature allows students to be removed from school and their records tarnished for simple possession or use of nicotine-type products.  The kid in the back of a class with that bottle full of brown liquid (spit from chew products) can be in serious trouble.  Or that kid with that "cool" vape pen could have his/her college entrance chances diminished if a suspension issues.  

If your child is up for suspension or expulsion for having a clove cigarette, some chew, or a vape pen, remember that alternatives to suspension should be attempted first if the offense is non-dangerous and is their first of the year (see Ed Code 48900.5).  

Have you checked your kids' backpack or pockets today to ensure none of these prohibited items are lurking in there?  If not, the next person who may tell you they are, could be the school Principal.

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.

* Betel: "an Asian plant that has leaves and red nuts that act as a drug when chewed" [per the Cambridge Dictionary] 

READ MORE - Possession of Nicotine or Tobacco As Basis For School Discipline

Medical Marijuana Administration And School Discipline

 By Michelle Ball, California Education Attorney for Students since 1995

In 2020, students were granted the right to have medical marijuana administered to them in school by their parent or guardian IF formally authorized by their school district.  The circumstances surrounding this potential opportunity can be confusing and if the law is not followed properly, could lead to discipline.

Per Education Code §49414.1 (aka JoJo's Law), it is up to each school board

if they will implement a policy to allow a parent to administer medical marijuana/cannabis at their schools.  If there is no policy in place allowing this, there is no right to administer medical marijuana at school.

If there is a board policy, per §49414.1: 

(c) The policy shall include, at a minimum, all of the following elements:

(1) The parent or guardian shall not administer the medicinal cannabis in a manner that disrupts the educational environment or exposes other pupils.

(2) After the parent or guardian administers the medicinal cannabis, the parent or guardian shall remove any remaining medicinal cannabis from the schoolsite.

(3) The parent or guardian shall sign in at the schoolsite before administering the medicinal cannabis.

(4) Before administering the medicinal cannabis, the parent or guardian shall provide to an employee of the school a valid written medical recommendation for medicinal cannabis for the pupil to be kept on file at the school.

If your child receives medical marijuana and you would like to administer it to them during their school day, check your district's board of education page to see if there may be a board policy in place.  If there is, it is critical that it is read and understood as far as what exactly IS allowed.  

If a parent does not follow the rules of their district exactly, the student could be disciplined.  For example, if a parent just can't get to school that day, and rather than forego giving the medication, they hand the medical marijuana to the student to stick in their backpack.  This is not allowed and discipline could result.

There remain laws on school discipline allowing suspension or expulsion for possession or being under the influence of marijuana, and this legal conflict has not been addressed.  As such, parents may want to formally confirm that if their child is "under the influence" due to allowed medical marijuana, they will not be punished as this "influence" is medically authorized and allowed by board policy. 

Parents may also want to explore a 504 Plan or Individualized Education Program (IEP) to see if the medication use or administration options (and other supports) may be addressed in one of these plans. 

There is still a lot of confusion surrounding medical marijuana at school, and students get punished for matters relating to cannabis very frequently.  Be sure your child won't.

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 - Medical Marijuana Administration And School Discipline

School Suspension And Expulsion For Fighting Or Threats of Harm

By Michelle Ball, California Education Attorney for Students since 1995

There are a multitude of bases for student discipline.  One of those bases involves fighting (aka "mutual combat"), threats, and/or physical violence to another.  Such conduct may or may not get a student suspended or placed up for expulsion.

Per California Education Code 48900(a)(1) for a student to be suspended or expelled for this type of conduct, they must have:

- Caused, attempted to cause, or threatened to cause physical 
injury to another person, or

- Willfully used force or violence upon the person of another, 
except in self-defense.

But, what does this mean in "real life?"  It means student fighting, threats to hurt someone (even vague ones), and responding in a physical way when attacked by another student, can get a student punished.

Fighting in schools, unfortunately may not be what you think, as the schools deem anyone responding physically to an attack as being involved in that fight.  

Although self defense is listed as an excuse which should prevent discipline, self defense is rarely accepted as a reason to NOT punish, unless a student who is assaulted runs away to the office, to an adult, or curls up in a fetal position to take the beating...  I am not being sarcastic. 

For example, if a student is hit by another student, and hits back, the schools usually deems this "mutual combat," and suspend both kids, regardless of who started it.  The insertion of the words "except in

self-defense," is very confusing as schools usually ignore this phrase, and suspend students if they engage in any form of physical altercation, and even if the student has no other choice (e.g. they are attacked).  

There are times when schools may allow the self defense "excuse," for example, when it is glaringly obvious, such as with a gang beating, but for the most part in a two student battle, both will be punished regardless of who started it.

Additionally, the mere "threat" of physical harm can get a student punished.  A "hit list" against students or teachers, threats to students or school personnel on social media, in threatening or violent essays, and even drawings of guns and destruction can land a student in the discipline hot seat.  First

Amendment free speech issues may arise, but schools usually ignore such rights if they exist at all, claiming an immediate and disruptive threat.

Whether a student actually will be punished for such conduct each time is up to the school. 

Usually in the student handbook will be a grid with a list of crimes and the possible punishment for each.  With fighting, or other physical harm, the schools will usually allow suspension OR expulsion even on a first offense.

In the "old days," students could probably defend themselves for real and not be suspended, but in our "zero tolerance" world, this is not the case. Students are expected to take a beating or run away so they won't be in trouble.  

Alas, no one ever said that school discipline was logical or reasonable, and I would certainly never make that claim.

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.

Originally published 5/5/11, updated 1/16/18, 8/21/20

READ MORE - School Suspension And Expulsion For Fighting Or Threats of Harm

School Suspension Or Expulsion For Bullying

By Michelle Ball, California Education Attorney for Students since 1995

Do you remember the school bully?  Or, maybe you have seen movie depictions such as the red haired youth with his raccoon fur hat who terrorizes the main character, Ralphie, in A Christmas Story.  Bullying can occur anywhere in schools: in the classroom, in the bathroom, in the office, behind a building, on a field trip, on the way to or from school -- wherever students interact.  Bullying conduct, or actions that someone says are bullying, may result in a student being suspended or expelled. 

Per California Education Code section 48900(r), students who bully can be removed from school. Bullying is defined generally as:

[A]ny severe or pervasive physical or verbal act or conduct, including communications made in writing or by means of an electronic act ...that has or can be reasonably predicted to have the effect of one ore more of the following [on a "reasonable pupil"]: 

1)  Places the student in fear of harm (for themselves or their property).

2)  Has a "substantially detrimental effect" to the student's physical or mental health.

3)  Causes substantial interference with the student's academic performance.

4)  Causes substantial interference with the student participating in or benefiting from "the services, activities, or privileges provided by a school. [information summarized not quoted]

When implemented, the legislature did attempt to limit the application of this statute to require "substantial" interference in three out of four of the categories.  However, they did not provide a definition as far as what amounts to "substantial interference," nor explain what a "substantially detrimental effect" to a reasonable student might be.  

The overbroadness of this statute means that practically anything can come under the "bullying" heading as many things kids do could put almost anyone "in fear of harm." 

Unfortunately, when disciplining students, schools require a low level of proof that an offense has occurred.  He who speaks first is believed.  And it does not help matters that expulsion hearings are usually in front of a panel of hand-picked District employees who will hear and decide on the matter.

The many ways actual and perceived bullying can manifest in school would be a good topic to go over with kids, so they can avoid a suspension or expulsion, as well as report bullying if seen to start the mandated investigation of process so they can help prevent it.  If you find your child being punished for "bullying," don't fear: with a thorough review of the legal codes and evidence, you just may show no bullying actually occurred. 

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.

Originally published on August 27, 2012, updated July 15, 2020

[This communication may be considered a communication/solicitation for services]

READ MORE - School Suspension Or Expulsion For Bullying

College Discipline: Initial Contact And Investigation Meeting

By Michelle Ball, California Education Attorney for Students since 1995

 

College discipline hearings can be difficult matters, and they all start with the allegation and investigation.  Due to the potential for severe punishment, it is important the initial steps are not mishandled.

Usually the first notice of a discipline issue arrives via the student's official college email, with an attachment telling the student to contact the college in a few days to set up a meeting.  Often this notice indicates that if the student fails to reply, dire consequences may result, such as a hold on their records or a denial of class registration.  There may be reference to a vague or unidentified allegation, so the student may not be sure what they are being accused of.  Students should not ignore this email and should set up any meeting requested.

As the student may have no idea why they are being investigated, a polite inquiry should be made prior to this meeting to attempt to get more detail on the allegations.  If the staff say "you will find out at the meeting," the student should still respectfully ask if they may be provided with information on the context and what codes are alleged to have been breached, if this was not included in the initial notice

The student can also request copies of any "evidence" which has been gathered and if they can obtain such prior to the initial meeting.  

Colleges may have a student advocate office or other similar office which they can contact at the university to get some input and advice about local practices.  This may also be the time to seek input from family members, such as a student's parents (if the student is comfortable with that), or potentially other sources, to be prepared.  Although legal counsel may be denied entry to the investigation meeting(s), they can be consulted outside the meeting.

The student should review the college codes for all relevant areas of possible alleged breach, as well as any discipline policies the college has published.  For example, at the University of California, Davis (UCD), there are many policies on their "Office of Student Support and Judicial Affairs" page, including a link to the current policies and procedures that are applied in student discipline matters.  Not all colleges, unfortunately, have adequate information on line, or even adequate policies, but it is definitely worth the time to learn what may be out there before the meeting.   

It is important to remember that whomever a student may meet with during the investigation has a lot of experience in punishing students and far more knowledge in this area, usually, than the student, so doing anything one can to get prepared is critical.

At the initial meeting, the student will likely be interviewed, and will hopefully be fully informed of the allegation, context, and codes allegedly breached.  The student may even be asked to admit what happened.  Or, they may simply be told that the college will be investigating and will get back to them for a follow up meeting.

It is never certain what will happen with these allegations, but I have found that colleges  tend to believe the accuser, not the accused student, so students should be prepared for  being doubted and cast as someone who has done wrong, despite telling college staff the truth and/or providing an honest, heartfelt denial of any allegation.  

Additionally, even though the staff member who interviews them may seem like a very sweet, kind, and understanding person, that is part of their method of obtaining information and data they may be able to skew or use in a discipline hearing against the student.  It is best not to forget the nice person interviewing them is on the other side, likely trying to prove the student "did it," and is the one who will likely be making recommendations on what punishment the student may face.

It is a bit tricky.

University students may be able to be accompanied to this meeting by a parent or a college advocate, but it is up to the individual school on what they allow.

If faced with a surprise email from your college or university saying to "call us or else!" don't ignore it.  But, do approach it in a methodical and prepared way so you can help yourself navigate these tricky waters and keep pursuing your degree.

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.

READ MORE - College Discipline: Initial Contact And Investigation Meeting

Will Lack of Social Distancing Or Threats To Touch Someone Be Suspendable and Expellable Offenses When Students Return To School?

By Michelle Ball, California Education Attorney for Students since 1995

Schools and students are in turmoil in California, with all pushed to distance education for fear of  the "invisible enemy" aka Coronavirus.  But what about the upcoming fall and the 2020-21 schoolyear?  How will students return to school in the Coronavirus "new normal" and how will school restrictions be enforced?  Imagine kids prior normal actions at school (running, hanging out, talking, high-fiving, texting, laughing, playing sports together, walking through crowded hallways) and now imagine those actions 6 feet apart.  How will schools stop kids from interacting and how will they be punished if they do not socially distance?  I am not looking forward to finding out.

It is hard to imagine kids playing on a playground and social distancing, isn't it?  Let's take a 5, 10 or even a 16 year old and try to keep them 6 feet away from their friends.  How will this work?  What about in physical education (PE)?  Will they just jog alone or play tennis?  There are innumerable questions and serious concerns on how this will be managed.  It is not hard to envision a heavy type of authoritarianism will exist in schools to enforce the new standards.  In this new "normal" what will schools do to stop kids who run within 6 feet of someone or who shake someone's hand?  Will they be suspended, or even expelled for placing someone in theorized danger?  I hope not, but I am not sure.

California students will have to navigate severe restrictions and face a new class of offenses that at this time can only be imagined, such as:

-  Being within 6 feet of another.
-  Not sanitizing properly
-  Threatening others with touching, spitting or breathing on them
-  Lying that they have Coronavirus to intimidate and scare others
-  Threatening to bring Coronavirus to school
-  Touching a friend, teacher or staff member (e.g. high-fiving, hugging, poking, bumping into someone)
-  Touching things around campus
-  Not sanitizing their desk or seat, etc. when they change classes
-  Playing in groups
-  Playing contact sports
-  Using someone else's stuff
-  Going to the bathroom when someone else is using it
-  Sitting in the wrong seat, spot or being in a place not marked with a taped "X" 

-  Not wearing a mask (if required)
-  Whispering to each other
-  Coughing or sneezing and not covering up the cough/sneeze
-  Coming to school with a fever or sick
-  Not reporting when a family member is sick
-  Posting on social media related to Coronavirus in a way that threatens students or creates a school disruption

There are no direct provisions in the California Education Code for suspension or expulsion for failure to social distance, or for students not waiting their turn, YET, but there are provisions in the Education Code for suspension or expulsion for other things that I fear may be used against kids.  

Education Code §48900:

This code section allows suspension or expulsion for many things, including threatening someone, disruption/defiance, and bullying:

A pupil shall not be suspended from school or recommended for expulsion, unless the superintendent of the school district or the principal of the school in which the pupil is enrolled determines that the pupil has committed an act as defined pursuant to any of subdivisions (a) to (r), inclusive:

(a)(1) Caused, attempted to cause, or threatened to cause physical injury to another person...

(k) Disrupted school activities or otherwise willfully defied the valid authority of supervisors, teachers, administrators, school officials, or other school personnel engaged in the performance of their duties. [expulsion and suspension may be limited depending on grade level]...

(r) Engaged in an act of bullying. For purposes of this subdivision, the following terms have the following meanings:

(1) “Bullying” means any severe or pervasive physical or verbal act or conduct, including communications made in writing or by means of an electronic act, and including one or more acts committed by a pupil or group of pupils as defined in Section 48900.2, 48900.3, or 48900.4, directed toward one or more pupils that has or can be reasonably predicted to have the effect of one or more of the following:

(A) Placing a reasonable pupil or pupils in fear of harm to that pupil’s or those pupils’ person or property.

(B) Causing a reasonable pupil to experience a substantially detrimental effect on the pupil’s physical or mental health.

(C) Causing a reasonable pupil to experience substantial interference with the pupil’s academic performance.

(D) Causing a reasonable pupil to experience substantial interference with the pupil’s ability to participate in or benefit from the services, activities, or privileges provided by a school.

So, if a student threatens another student with coming close to a friend and "getting" them, will this mean they are threatening them with harm?  What if a student purposefully intimidates a student who is very fearful of Coronavirus?  Will this be bullying?  If a student refuses to stand apart from friends trying to play, will they be sent to the office?  What if they want to run around separately, but accidentally run into each other- will they be expelled for endangering someone?  Is this even far-fetched in the current climate of California?  Not necessarily.  This is just one more minefield they will have to navigate.

Another code section which could conceivably be twisted into a tool to punish during the Coronavirus panic is Education Code §48900.4, which states:

...a pupil enrolled 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 intentionally engaged in harassment, threats, or intimidation, directed against school district personnel or pupils, that is sufficiently severe or pervasive to have the actual and reasonably expected effect of materially disrupting classwork, creating substantial disorder, and invading the rights of either school personnel or pupils by creating an intimidating or hostile educational environment.

The student who threatens another daily with touching them, with being next to them on the bus, with breathing on them, could conceivably have this code thrown at them to punish.

What about Education §48900.7?  This section allows suspension or expulsion for making threats of grave harm which can be immediately carried out:

(a) ... a pupil 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 made terroristic threats against school officials or school property, or both.

(b) For the purposes of this section, “terroristic threat” shall include any statement, whether written or oral, by a person who willfully threatens to commit a crime which will result in death, great bodily injury to another person, or property damage in excess of one thousand dollars ($1,000), with the specific intent that the statement is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate family’s safety, or for the protection of school district property, or the personal property of the person threatened or his or her immediate family

One can only imagine a student saying he spit on his hands and rubbed all the doors and handles, or who did not wash his hands (or gloves if required) before he came to class, or who tells many people he has Coronavirus and will purposefully make the school sick (despite not having it), being accused of terroristic threats. 

As I frequently see kids unfairly suspended and expelled, this is just one more concern I have when kids return to school under California's strict Coronavirus control measures.  Ultimately, it will be up to the reasoned application of discipline rules to students by school administrators and the strong advocacy of parents.  Let's hope schools use their discretion to discipline wisely in the "new normal."  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

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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 - Will Lack of Social Distancing Or Threats To Touch Someone Be Suspendable and Expellable Offenses When Students Return To School?