sarushkaa: May 2011

Friday, May 27, 2011

Tedious College Policies and Procedures- Yes You Have To Follow Them In Your Discipline, Academic, or Other Problem

When college issues arise, handling them can be a bear to say the least. They can range from minor discipline matters to out and out exclusion from a college or university based on academics or some alleged wrongful conduct. When these problems develop, a student must look toward and follow the college procedures if they want to "fix" the issue at hand.

Colleges usually have quite a number of written policies. As indicated in an earlier blog, these policies are typically the main guide for a student with a problem. Applicable policies are usually outlined in the school catalog, on-line, or in handouts and correspondence from the school.

In a typical college matter, a student could be placed up for discipline for alleged bad acts. When the student becomes aware of the allegations, the student needs to immediately research the policies relevant to discipline and take all steps to try to address the matter. Often this involves a disciplinary hearing where the student can bring written evidence, documents, and present witnesses. If the college issues a punishment without a full blown hearing (e.g. "take this punishment or go to hearing") the student is wise to thoughtfully review the matter, the discipline being imposed, and the risks (or potential benefits, e.g. winning) of going to hearing. Often, the possibility of overturning a matter outweighs the risks, especially if the discipline has no basis.

Sadly, it is not uncommon for busy college students to simply "take" the punishment issued whether warranted or not. This common lack of opposition can make colleges lazy when they impose punishment and the discipline may be poorly supported. This can be good for the student who challenges the college as the accusations may fall apart.

Some of the potential hearings which a student can request or participate in include:

1) Discipline hearing (re: expulsion, suspension, various forms of discipline and their basis)
2) Appeal of discipline hearing (may or may not be available)
3) Grade appeal hearing (oppose an unjust grade)
4) Grievance complaint (to complain about a situation or individual)
5) Records correction hearing (granted under FERPA- the Federal Education Rights and Privacy Act).

In any situation, a university student has to apply themselves to the situation at hand and make the most productive noise possible. This may mean filing one or all of the above internally or going outside the college setting in certain cases.

An attorney can be helpful in college matters to advise the student or draft documents for complaints. However, check the college policies which may limit attorney involvement in some situations. For example, an attorney may not be allowed to attend a discipline hearing, but may be able to help with drafting documents, and attending meetings outside the hearing setting.

Regardless, it is a good idea to thoroughly read the college policies and to take action on any matter at hand. Otherwise, the discipline or outcome proposed will likely be implemented and can have a long-term negative impact.

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.

Monday, May 23, 2011

Does The Right To Graduate From School Mean A Student Has A Right To Walk At The Graduation Ceremony?

I have been approached in the past by families of students denied the right to walk at their commencement exercise (aka graduation ceremony). They will be given a diploma, usually via mail, but have been told not to bother coming to the graduation ceremony itself. Needless to say, families in this situation are very unhappy.

Adding to the issue is usually the fact that the student's family heard about the matter a mere week or two prior to the commencement exercise, which is a once in a lifetime event.

The bottom line is that if a student has met the academic requirements for graduation from, for example, a public high school, they DO have a legal right to a diploma from the institution they attended. For example, if they get those 220 units, pass the CAHSEE (California High School Exit Examination), and meet their class requirements, they earn their diploma which cannot be denied.

However, the "right" to walk and participate in a graduation ceremony is an entirely different matter as it is not a "right" at all. Walking at graduation is a privilege, similar to driving, and it can be taken away.

However, a school, in any commencement denial, cannot act in an arbitrary and capricious manner. Something arbitrary and capricious would generally be something at the whim or fancy of the administration or that is not supported by "fair or substantial reason" (see Zuehlsdorf. v. Simi Valley, 2007 2nd Dist. Cal). For example, if Joe S. was denied the right to walk only because the Principal did not like him, such denial could be arbitrary and capricious. But, if Joe was denied because he had 5 suspensions in his senior year and a school board policy said that 5 suspensions meant no commencement exercise, that may not be arbitrary and capricious.

My most recent issue involved a student being denied the ability to walk at an eighth grade graduation. We won the matter as the rights outlined in the district graduation policy had been denied my client. Per the school board policy, the student was supposed to receive notice and the basis for the denial, had a right to respond prior to any denial, and he also had an appeal right. He was denied all of these rights. To top that off, other students who were in very similar situations to my client were being allowed to walk at graduation. As such, the denial looked like out and out targeting, which of course is ARBITRARY AND CAPRICIOUS. When we raised these issues my client graduated AND happily walked at graduation.

In another situation in which I was involved, a high school student received her first suspension during her senior year, and was denied participation in graduation and other senior activities. We were able to argue that the imposition of such as harsh penalty was arbitrary and capricious. Needless to say, she walked at her graduation and regained some senior activities.

If your child has been denied the right to walk at graduation, check the school policies to see if they provide rights in the situation, and also attack the decision as arbitrary and capricious if you can. Having an attorney in the mix can't hurt either.

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

Monday, May 16, 2011

Corporal Punishment: Intentionally Causing Physical Pain To A Student Is Prohibited in California

School staff willfully inflicting physical pain to students is considered corporal punishment and prohibited in California unless certain exceptions exist. As such, hitting, pulling hair, pinching, kicking, and other forms of physically painful contact with a student, usually is unacceptable and illegal.

In California Education Code 49001, "Corporal Punishment" is defined as: "willful infliction of, or willfully causing the infliction of, physical pain on a pupil." This means that any PHYSICAL PAIN caused intentionally to a student, by a person employed or engaged by a school, is not okay. Would purposefully slamming a student into a wall, spanking a student, slapping their hand with a ruler, and/or lifting a student out of a pool by their hair be considered "corporal punishment?" To determine this, ask yourself: was physical pain caused to the student? Was the physical pain intentionally caused by the school representative? If the answer is yes, the conduct could constitute prohibited corporal punishment under section 49001 so long as it does not fit under an exception.

Education Code 49001 lists the exceptions to corporal punishment as follows:

"An amount of force that is reasonable and necessary for a person ... to quell a disturbance threatening physical injury to persons or damage to property, for purpose of self-defense, or to obtain possession of weapons or other dangerous objects within the control of the pupil is not ... corporal punishment. "

If a student were pulled by their hair to prevent drowning, knocked into a wall in an attempt to obtain a gun, or hurt when the staff member was trying to stop from being punched, causing physical pain might not be considered prohibited under the circumstances. But we can all see how that is different from going after a kid to cause them pain with no legitimate reason. If there were harm caused in a justified situation, the only question then would be, was the physical pain caused "reasonable and necessary?" That may be a matter of opinion as even in "self-defense," staff can go too far.

If parents encounter what they believe to be intentionally caused physical pain and/or harm by a teacher or other school representative, they should not let it go. Parents must take action and immediately contact an attorney to help draft and file a proper personnel and/or other type of complaint to ensure the person involved is corrected and the matter resolved. Otherwise, the staff member could continue their improper conduct with even more dire consequences the next time.

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

Tuesday, May 10, 2011

Video Evidence Means Schools Cannot Hide Student Abuse-- Video Of Coach Pulling My Client Aggressively By Hair Opens Door To Action

One of the top stories in my area (Sacramento, California) and apparently around the globe, is that of the female student whose coach attempted to lift her out of the water by her hair at a swim meet. The student was thereafter told that she was kicked off the swim team and stripped of her swim badges, all because she and another student swam half of their portion of a freestyle swim race. The word "overkill" seems in order.

This incident has now gone global with internet access to the media. The man involved, Geoff Capell, has now reportedly quit his position as assistant swim coach and the head swim coach (his daughter) remains. This is BIG news and such actions can cause BIG problems for school districts.

Meanwhile, despite the situation, when I heard from the family, they were getting nowhere as far as getting the student, and her teammate who was also kicked off, back on the team. Luckily, our paths crossed and after my office got involved both girls were promptly reinstated and will be awarded their badges. This is great news. There is more to do, but I will leave that alone for now.

This matter illuminates a change in evidence in our society by which individuals and school officials may be held accountable- video evidence. Because of the rise in phone video cameras and other devices allowing people to record everything around us, conduct which previously would have been ignored or brushed off becomes international news overnight. No longer can school officials hide from accusations which are a matter of "personal opinion," as the camera does not lie. This is good for students who may be inappropriately touched or even assaulted by school officials. If any of you remember Rodney King, he would not be THE Rodney King now were video cameras not rolling the day he was beaten by police officers.

Years ago, if a parent came to my office and said "the coach pulled my hair violently," I might have told them to file a personnel complaint and hoped for an accumulation of incidents over time to get rid of the coach. Although parent complaints do help parents to solve problems, a personnel complaint alone in no way has the IMPACT that video can have. Just look at the hair pulling by the former coach. If the student weighed 120 pounds, that is how much weight was conceivably applied to her head and hair, let alone the yank by the coach which came as a shock to the student. It was more painful then it looked. Why do adults have to act SO poorly?!

Luckily for my client, there is video involved that is now everywhere you look ("viral" as my husband likes to say) and which clearly shows the overstepping of boundaries in this matter. Without it, my client might still be off the team based on her perception of the tug versus the former coach's perception of the tug, as perception is subjective and can result in a never-ending "he said she said" feud. Video, on the other hand, is objective and undeniable, and, unless tampered with, does not lie.

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

Thursday, May 5, 2011

School Suspension and Expulsion Bases: Fighting and Threats of Harm

There are a multitude of bases for student discipline as described in my earlier blogs. 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 is obvious as far as a basis for discipline, but what about defending yourself? Although self defense is listed as an excuse which should prevent discipline, in real life (e.g. at schools), self defense is not often 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...! Parents, 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 suspends both kids, regardless of who started it. The insertion of the words "except in self-defense," in the Education Code often do not register on a school's radar and they suspend any student if they engage in any form of physical altercation, even if the student has no other choice (e.g. they are attacked). However illogical this sounds, this is the standard that I have seen applied since I entered this business.

There are times when schools WILL allow the self defense "excuse," for example, when it would be glaringly obvious even to a 3 year old (no offense against 3 year olds), such as with a gang beating of a kid, but for the most part in a two student battle, both will be punished.

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 Facebook or other social media networks, 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.

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 punishments 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. This does not always fit when a kid is attacked. 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
Fax: 916-444-1209
Website: http://www.edlaw4students.com/

Blog: http://edlaw4students.blogspot.com/

Twitter: http://twitter.com/michelleaball

Wednesday, May 4, 2011

Teacher's Termination Upheld For Sexually Explicit Craigslist Ad Not Connected To School

Some time ago, a question was sent to me via my Twitter account regarding just WHAT is enough to get a teacher terminated. Termination is up to the individual school district involved and what is enough may be very fact specific. However, some instruction on just what a teacher can be fired for was outlined by the California Court of Appeals, Fourth District in its decision San Diego Unified School District v. Commission on Professional Competence (2011) issued this week (May 3, 2011).

In its opinion, the Court of Appeals upheld a District termination of a teacher for posting a highly explicit sexual ad on Craigslist seeking male-on-male companionship. The ad included four pictures, two of which were very intimate pictures of the teacher, while another showed the teacher's face. The ad did not reference the teacher's employment, name, nor was the ad connected in any way to the teacher's school activities. However, according to the opinion, the ad was viewed by a parent who reported it to the Principal. Later, an investigator was assigned and the teacher was terminated.

Although the ad was personal and outside the purview of daily school activities, the Court upheld the termination for "immoral conduct," and "evident unfitness." This was based in part on the activity, the fact that a parent and the Principal had seen the ad, and also based on deference to the school district as the final arbiter of who is fit to work in their district.

Also instructive on teacher termination is a prior decision by the Commission on Professional Competence (CPC) upholding a teacher's termination for failing to get her English Language (EL) certificate for 8 years, in direct contradiction to her district's orders. Her termination was upheld as she was found to have been unprofessional and insubordinate (see a summary here by the attorneys who represented the district).

Even though such certification was not legislatively mandated, the Court of Appeals for the Third District in Governing Board of Ripon School District v. Commission on Professional Competence (2009) found that school districts can impose additional requirements on their employees, above and beyond what is outlined in the law. The district in that case (Ripon Unified) was required to provide access for its EL students to its programs, but could not assign an EL student to the teacher's classroom (she was the only music teacher) due to her lack of EL training. The teacher's continued refusal to be trained got her terminated.

To be clear, I do not represent teachers in their employment law matters, but do help parents lodge complaints on teachers with districts. As such, I wanted to provide a little flavor of a couple of the issues which can get a teacher terminated, including off campus personal conduct. If a parent is having problems with a teacher, they should involve an attorney to file a personnel complaint,http://www.craigslist.org/about/sites and may want to investigate the teacher's on and off campus behaviors, as these can give a district the ability to terminate the teacher in question.

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

Tuesday, May 3, 2011

Resist Teacher and School Pressure To Drug Your Children For Them To Attend And Be Educated

Under both California and federal law, schools CANNOT make drugging kids a condition of attending school. This means that if a child is alleged to have "behavior issues" there is no requirement parents seek out a mind-altering substance to control them in the classroom. Despite this, there is often a LOT of pressure from school officials, teachers, etc. for parents to control a non-conforming child by use of drugs. Prior to giving in to the pressure, PLEASE look at alternative methods of controlling behavior as described below.

Over the years, I have consulted with thousands of parents with problems in the schools. Conflict arises when a student cannot sit in their seat 4-6 hours a day without distracting other students with foot tapping, jokes, fidgeting, or other activity. The intolerance is large and the schools have become much more focused on CONTROL of children.

Many parents, as a result, have been pressured by the schools to make their child "fit in" within the public school classrooms and their method of instruction. Unfortunately, the typical classroom does not work for all kids. As such, parents may hear little hints and/or direct suggestions from a child's teacher that "he may have ADHD (Attention Deficit Hyperactivity Disorder), you should get him evaluated." Or, "he won't be able to stay in MY classroom unless he gets himself under control- have you looked into XYZ medication?" The pressure can be intense and unrelenting.

Thankfully, there is NOTHING a school or district can do if you refuse to put your child on medication to control their behavior. Now, when I talk about medication, I am referring to psychotropic medication. In general terms, this is medication which is prescribed by an MD (Medical Doctor) or a Psychiatrist to purportedly handle attention, hyperactivity, mood, depression, anxiety, behavior, and other activities that are not "normal."

Before looking to medication as the "answer," consider these options:

1) Placement in a different setting which allows for more movement, interaction, independent study, etc. -- whatever may work for your child. There are charter schools, private schools, home schools and many options other than the public schools.
2) Student Study Team (SST) meeting to develop a support plan for a child in regular education.
3) 504 Plan to develop reasonable accommodations to help your child BE in the classroom, for example: frequent breaks, the ability to walk around the room or complete a task for the teacher, access to counseling with staff, etc. There are so many accommodations which can be made if behavior is impacting school, it is unbelievable. The student, however, has to have some sort of identified disability which impacts learning and/or other areas of existence prior to qualifying for a 504.
4) Behavior Support Plan (BSP): These plans may be developed in conjunction with the SST, 504, or special education. I have been surprised with how many students with behavior problems in school have no and/or inadequate BSPs. This is a fabulous tool to evaluate and handle behavior issues.
5) Medical evaluation: a child may also need a full medical evaluation to discover what PHYSICAL problems may be causing behavior issues, such as allergies, vision problems, hearing problems, low thyroid, diabetes, or a myriad of other physical problems impacting behavior.
6) Alternative Mental Health: Parents also should consider alternatives to drugging such as listed at the site alternative mental health.com. This site says it is "the largest site for non-drug approaches for mental health." As psychotropic drugs may be "mind-altering" to a student and can have severe side effects, I would urge parents to look at every alternative prior to proceeding with drugs for behavior. There may be another way.

The bottom line is that parents are in charge of their child's mental health and must help them if they have issues. The school cannot force a parent to drug a child, and parents must be ready to resist the pressure. You can do it!

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