Monday, August 27, 2012

School Suspension Or Expulsion For Bullying Under California Education Code 48900(r)

By Michelle Ball, California Education Attorney for Students since 1995

Bullying has been a hot topic recently, due to its prevalence in schools: on the bus, in the classrooms, in the bathrooms, and generally wherever students interact.  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.  Did you know that students can be suspended or expelled from school for bullying?

Per the California Education Code, section 48900(r), students who bully can be kicked out of school. Such discipline is limited to pupils in the fourth grade or above and the legal definition of bullying is as follows (summarized below):

"Severe or pervasive physical or verbal act or conduct, including communications made in writing or by means of an electronic act ...that has or could be "reasonably predicted" to have the following impact 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."

A "reasonable pupil" is defined as: "a pupil, including, but not limited to, an exceptional needs pupil, who exercises average care, skill , and judgment in conduct for a person of his or her age, or for a person of his or her age with his or her exceptional needs."

What this means in English and how this will play out is yet to be seen.  The legislature did attempt to limit the application of this statute in the fact that they 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" might be.  And I don't know about you, but some of the things kids do could put almost anyone "in fear of harm."

Most likely the schools will require a low level of proof.  The vague language here is doubly concerning when one considers that in the majority of expulsions, parents and students appear before a panel of hand-picked District employees who will hear and decide on the matter and the punishment.

Parents really need to ensure that they involve proper legal help if their children are up for expulsion for bullying as the right to attend school is an important right to fight for.

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
[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.
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Thursday, August 2, 2012

School Districts Must Revise IEP Annually Or They May Not Be Providing A Free And Appropriate Education

By Michelle Ball, California Education Attorney for Students since 1995

In the Ninth Circuit Court of Appeals decision Anchorage School District v. M.P. (July 19, 2012, No. 10-36065), the Court ruled that the lack of an updated annual IEP (Individualized Education Program) plan resulted in M.P. (student) not receiving a Free and Appropriate Education (FAPE).  The Court also ruled that the parents were to receive reimbursement for private tutoring and attorneys fees.

In Anchorage, Judge Paez stated that a school district has only two options if the annual IEP remains unsigned (e.g. a parent wants more changes, rejects it, etc.). The District must then either:

1)  Continue working with the parents to develop an IEP which is accepted by all, OR
2)  Revise the IEP on their own and file a due process hearing to seek administrative approval of the proposed IEP.

This is significant.  There are many times that parents have a signed IEP, e.g. from 2 years ago, but no signed IEP since that time due to disputes.  However, as explained in Anchorage, this would evidence a lack of FAPE.  A district cannot just continue relying on the old outdated IEP while the child "advances" from grade to grade.  Rather, as the Court explained, they have "an affirmative duty to review and to revise, at least annually, an eligible child''s IEP."  If they do not, the district can be attacked for a lack of FAPE and may have to pay for services (compensatory education) provided by the parents during the time there was no FAPE.

The Court also was not deterred by the argument that the parents were too litigious and somehow stopped the annual IEP from being finalized.  Instead, Judge Paez opined that regardless of the parents exercise of their right to object, the district must update the annual IEP to ensure a student receives appropriate services.

This is a wonderful opinion for parents which should ensure that students don't get stuck with outdated IEP documents with pointless goals from many years before.  If there is an impasse, the school district must work with the parents to finalize the IEP or go to hearing. 

This is not a long decision and is a good read.  I encourage all parents of special education students to review 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/
[please like my office on Facebook, subscribe via twitter and email, and check out my videos on Youtube!]
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