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Friday, August 21, 2020

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

Wednesday, September 14, 2011

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.

Tuesday, July 5, 2011

What Happens After A School Expels a Student? Can They Still Attend Some School?

By Michelle Ball, California Education Attorney for Students since 1995

No one likes to think about school expulsions or their child getting kicked out of school. But what if the very worst happens? What if an expulsion from the school district actually issues?

A child who is expelled, unless an exception is made in the expulsion decision and/or agreement, may not attend any school within the district from which they were expelled. But, they still are entitled to an education. Per California Education Code section 48915(d), a student who is expelled shall be referred to a program of study which meets the following conditions:

(1) Is appropriately prepared to accommodate pupils
who exhibit discipline problems.

(2) Is not provided at a comprehensive middle, junior, or senior
high school, or at any elementary school.

(3) Is not housed at the schoolsite attended by the pupil
at the time of suspension.

What this translates to in the real world post-expulsion, is usually a move to a continuation school. If the school district has their own continuation school set up, the student is shuffled there. If the district does not, the students are usually referred to the county continuation school. These are not the places most parents usually want their child to attend, but they do work for some students in the right circumstances. The reason they may be perceived as unsavory is, ironically, the fact that all the expelled (aka "bad") students attend these schools. Most parents do not envision their children as one of "those kids" even after they are expelled.

One good thing- usually the attendance at the assigned school is not mandatory (verify with your district), so a parent may attempt to enroll their child in another district, a charter school, a private school, or an on-line school. Often an on-line school may be the only option, but the others may be worth a shot as well. When applying, a parent must tell the new school they are trying to enter of the expulsion. However, they can still attempt to persuade the school to admit the student. A letter of their own and/or authored by their legal counsel explaining the situation, how it was flawed, etc. may be helpful.

Rather than take a shot at the expulsion hearing, and risk such a placement, it is strongly recommended that parents involve an attorney specialized in education law prior to the expulsion hearing so a more positive outcome may be sought. Expulsions are a big deal- don't chance it.