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

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

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

When A Bullied Student Becomes A Target For School Discipline

By Michelle Ball, California Education Attorney for Students since 1995

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

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

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

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

A Hypothetical Example Of Bullying And A Lack Of Follow Through

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

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

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

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

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

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

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

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

Best,

Michelle Ball

Education Law Attorney 

LAW OFFICE OF MICHELLE BALL 
717 K Street, Suite 228 

Sacramento, CA 95814 

Phone: 916-444-9064 

Email:help@edlaw4students.com 

Fax: 916-444-1209

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 - When A Bullied Student Becomes A Target For School Discipline

When In Doubt Go To The School District

By Michelle Ball, California Education Attorney for Students since 1995

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

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

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

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

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

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

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

3)  Submit in writing and cc via email.

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

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

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

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

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

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

Best,

Michelle Ball
Education Law Attorney
LAW OFFICE OF MICHELLE BALL
717 K Street, Suite 228
Sacramento, CA 95814
Phone: 916-444-9064
Fax: 916-444-1209
Email: help@edlaw4students.com

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 - When In Doubt Go To The School District

School Discipline For Harassing A Witness In A School Matter

By Michelle Ball, California Education Attorney for Students since 1995

Can a student say what they want about witnesses who report a problem at school?  What about statements which may intimidate that student: comments such as "nark," "snitch," or other modern equivalent?   Intimidating a witness is strictly prohibited and could result in suspension or expulsion for the student uttering such statements.

Per Education Code section 48900(o) witnesses to a school discipline matter who come forward cannot be threatened, harassed, or intimidated because they are, or were, witnesses.  Specifically, this section states that a student can be suspended or expelled if a pupil:

Harassed, threatened, or intimidated a pupil who is a complaining witness or a witness in a school disciplinary proceeding for purposes of either preventing that pupil from being a witness or retaliating against that pupil for being a witness, or both.

This can lead to a tricky situation if a student is trying to gather evidence to defend himself in a pending expulsion matter.  For, what if they call a friend who was a "witness" against them to ask about their testimony, or question that person on what they saw (e.g. for their defense)?  How may this be perceived?  Chances are the "witness" may feel pressured, upset, or even threatened merely by a phone call from someone they "told" on.  As such, contacting witnesses is a dangerous activity for an accused student.  

To complicate matters, often the identity of the complaining witnesses are not disclosed to the accused student, so when they think they are calling a "friend" for help, they may actually be calling a witness in the matter against them without knowing it!

Tricky.

If a student breaches §48900(o) or is even perceived as having breached it via contact with a witness, they may be charged under this section with a violation and disciplined.

What if students not accused of a wrong go on social media (Twitter, Facebook, etc.), or just talk amongst themselves, about how "bad" another student who "told" is and/or make threats to beat them up?  This could land the students talking in hot water with the school or other authorities.  See the recent reports of arrests of students threatening a rape victim in Ohio when their rapist friends were convicted.

The bottom line is that if someone provides information to the school administration or others about a discipline matter, they are not to be threatened or intimidated.  However, what is a "threat" or "intimidating" is sometimes a vague matter at best.  Tread lightly!

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

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

Please see my full 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 - School Discipline For Harassing A Witness In A School Matter