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.

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When is School Expulsion Mandatory in California Public Schools?

By Michelle Ball, California Education Attorney for Students since 1995

School expulsion is NOT something any parent wants their child to endure.  To be removed entirely from a school district to have to attend a "bad" school is not a fun process.  A permanent mark is placed on the student's record which may come up later in life, including when completing college applications.  As such, it is good to know WHEN an expulsion is MANDATORY for a school district. In other words, when does a school district have no choice but to recommend expulsion and thereafter expel a student?

In California there are only five categories where a public school student MUST be expelled.  Please see Education Code §48915(c) for more specifics:

1)  Possessing, selling or furnishing a firearm.
2)  Brandishing a knife at another person.
3)  Unlawfully selling a controlled substance.
4)  Committing or attempting to commit a sexual assault or committing a sexual battery.
5)  Possession of an explosive.

These are the Big 5 offenses.  IF a district can prove at the expulsion hearing (to a panel of school district employees) that one of these occurred, they are legally obligated to expel the student.  

If a student is expelled under §48915(c), the only attendance option (unless negotiated otherwise) is to attend a county community school, juvenile court school or community day school (see §48915.2), which are environments most parents would prefer to avoid. 

How long an expulsion under §48915(c) will continue will depend on the hearing outcome, and/or the negotiations prior to hearing.  The legal maximum an expulsion under §48915(c) may continue is a full calendar year (unless there is a breach of the rehabilitation plan during expulsion which will extend the expulsion). The minimum is not delineated in code, but would likely be 1 semester and/or what a parent negotiates. 

It IS possible to shorten the one year expulsion mandate and negotiate and/or receive a lesser time period, or even a different type of expulsion (e.g. suspended expulsion rather than full expulsion), but whether this is possible will depend on the student, the district and the school board.  Parents will best be served by thoroughly understanding the ramifications of any expulsion and all potential outcomes, and perhaps seeing if they can negotiate a more positive outcome, prior to moving to hearing.
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.

originally published 1/7/11, updated 9/19/17

READ MORE - When is School Expulsion Mandatory in California Public Schools?

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

Suspension Or Expulsion For Knives, Guns, Explosives Or Dangerous Objects And A Way Students CAN Have Them On Campus?

By Michelle Ball, California Education Attorney for Students since 1995

What will happen to Johnny if he has a gun, knife, explosive, or dangerous object on campus without permission?  We all know the usual answer, but according to the California legislature, it will depend on whether Johnny has permission to possess the item.

Under California Education Code section 48900(b), students may be suspended or placed up for expulsion if they:

"Possessed, sold, or otherwise furnished a firearm, knife, explosive, or other dangerous object, unless, in the case of possession of an object of this type, the pupil had obtained written permission to possess the item from a certificated school employee, which is concurred in by the principal or the designee 

of the principal."

So, if Johnny has a gun, sells a gun, or provides a gun to someone, he can be suspended or expelled.  Same difference with a knife or explosive, which seems fairly self-explanatory. With the "dangerous object" portion, schools may interpret "dangerous object" as covering practically anything, rightly or wrongly.  For example, a pencil, scissors, stick, book, pillow, spit, urine, chemicals, and on and on, depending on how the object were used.  As such, this code section can sometimes be stretched, properly or improperly, to attempt to meet the situation.  A parent would of course argue a pillow, book, or other common object was never a dangerous object and the intent was to cover obviously dangerous objects (nunchucks, throwing stars, etc.).

Section 48900(b) provides an interesting exception which could avoid a suspension: permission to possess a gun, knife, explosive or dangerous object (this is too good to be true!).  But, how any student would ever get "permission" to possess a firearm, knife, explosive or "dangerous object," is beyond me.  I would suggest that any child who actually had the nerve to seek permission to bring one of these items on campus, would be interrogated and searched by today's school administrators.  This would not be okay, but they would probably take such a request the wrong way and go after Johnny regardless of what the code says.

Obviously when this code was written many years ago, the legislature thought this might be possible.  The only scenario I can think of is for some kind of school play, or an authorized in-class demonstration (show and tell).  If "permission" is sought, make sure it is granted in writing and the principal signs off as well as the teacher granting the permission, or the kid could be toast regardless of the situation.

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

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

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 Knives, Guns, Explosives Or Dangerous Objects And A Way Students CAN Have Them On Campus?

School Expulsion/Discipline For Knife Offenses: What IS a Knife Under the California Education Code?

By Michelle Ball, California Education Attorney for Students since 1995

Many students are suspended or placed up for expulsion for possession of a "knife," pursuant to California Education Code 48900(b).  Although what a "knife" is, seems somewhat obvious, it is specifically defined in  the Education Code and the definition is important.

A sister section, 48915(g) contains the definition of a knife as it relates to suspension or expulsion.  Per 48915(g) a "knife" is:

[A]ny dirk, dagger, or other weapon with a fixed, sharpened blade fitted primarily for stabbing, a weapon with a blade longer than 3 1/2 inches, a folding knife with a blade that locks into place, or a razor with an unguarded blade.

Okay- you may feel like you are somewhere back in time when trying to figure out what a "dirk" or "dagger" is, but click the links to find out.  For our purposes, the two most important definitions are:

1)  Weapon with a blade longer than 3 1/2 inches, and
2)  Folding knife with a blade that locks into place.

This is because in my experience these are two most helpful definitions for parents.

The reason is this: if a kid goes fishing over the weekend, leaves his multi-tool, key chain, or swiss army knife with a blade that locks into place in his pants pocket, and throws those same pants on in the rush to get to school on Monday, he has a knife for expulsion purposes.  It does not matter if he did not intend to bring the item to school, nor that he used it for fishing- he could be in trouble if this item is discovered.  Of course, many kids, finding such an item in their pants pocket while at school, take it out, fiddle with it in class, show it to friends, or simply use it.  That is a very very bad idea.  In fact, even if the blade is minuscule, dull, and looks like it could not hurt a bug, if it locks, the school may choose to apply their "zero tolerance" viewpoint and put the kid up for expulsion.

If the same tool does NOT have a locking blade, that is when the 3.5 inch blade issue arises.  If a blade is 3 inches long, attached to a multi-tool, and not "primarily for stabbing," this may open a door for attack.  Please note: the student still may be put up for school expulsion for other reasons such as possession of a "dangerous object," but that is a story for another day.

Now, don't count on the schools understanding this nuance- it may be a matter to be raised in the child's defense by legal counsel.  In my experience, it is rare for schools to listen to parents without attorneys when it comes to legal interpretations.

There is a lot more to say, but basically if a child is up for expulsion for possession of a knife, check the definition above to be sure what they have really IS a "knife."  If it isn't then any discipline for a "knife" may be open to attack.

P.S.  If you like my blogs, please "like" me on Facebook, and  subscribe to my email updates and Youtube channel (see links up and to the right).

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 - School Expulsion/Discipline For Knife Offenses: What IS a Knife Under the California Education Code?