Did You Hear The One About The Five Year Old Arrested At School And Taken To A Psychiatric Hospital? No, Really- No Joke....

By Michelle Ball, California Education Attorney for Students since 1995

As a California Education Attorney, I have heard horror stories for over 16 years since I started helping parents and students.  Sadly, the story of five year old Michael Davis, a student of Stockton Unified School District is nothing unusual.  It is again, a wake up call for parents.

From what I can gather from internet reports (KCRA, Newsone), Michael is a 5 year old student who allegedly gets in fights and is a behavior problem at school.  The first thing here is HE IS 5 YEARS OLD.  There is no legal obligation to put your kids in school until they turn six years old.  A student who can't sit still, who fights, etc. may just be a rambunctious student and not ready for the controlling environment that the public schools have turned out to be.  Also, sometimes five year olds can simply be wild and enthusiastic in a physical or distracting way.  It was not until the public schools came into the picture that this became a disease.

Additionally, the mother states in her KCRA interview that she had asked for special help for some time and was denied behavior support and other services due to money.  Item number 2:  you cannot deny a student with a qualifying handicapping condition (Michael is alleged to have ADHD- Attention Deficit Hyperactivity Disorder) the support services which are needed to provide a Free and Appropriate Public Education (aka FAPE) based on money.  He likely qualified for special education under the category of Other Health Impaired, which opened the door for special education and support services.  Sadly, unless he was designated with a "disability," he could not obtain support services which is an issue in and of itself, but I digress.

Next, the school gets the bright idea to have the school cop talk to Michael to "scare him straight."  Mom apparently knew about this in advance.  Item 3: bad idea to try to make a 5 year old scared straight.  This is not a good idea- they are five.  Jail is a vague concept at best and really, could you lock them up in jail anyway?  No.

When the cop went to touch Michael, Michael allegedly batted his hand away, kicked him, and pushed papers around.  Now, parents of five year olds, is this really that unusual?  What about stranger danger!?  I teach my kids the danger of strangers and would not want them to allow any stranger to put their hands on them.  I would actually have them try to get away.  Of course, the fact this was a "cop" in uniform was supposed to make legitimate feelings of fear irrelevant, but I doubt that eased little Michael's mind much.

Next, the cop allegedly zip tied this kid for approximately 2 hours (according to his mother), and took him to a psychiatric facility to be evaluated.  Hmmmmmmm...... that's one really bad way to get a kid evaluated without parental consent.  Yes, if a student is a danger to self or others, they CAN do this, but was this really reasonable?  Had a behavior plan been in place, or had the cop backed off when his "scared straight" approach obviously failed, Michael could have calmed down and gotten back to work.

Long story short, Michael was cited by a cop (at five years old!) and later retrieved from the psychiatric hospital.  The charge was later dismissed (thank you your honor!).

This sounds like fiction, but is a reminder to parents:  THIS COULD HAPPEN TO YOUR CHILD.  DO NOT BE COMPLACENT ABOUT THE SCHOOLS.  How would you like your kid carted off to a psychiatric ward when a cop touches them and they react in fear?  How would you like your son or daughter to be tied up by the cops because they would not behave in the institution that is our public schools?  I would not, and do not like it.  Parents may want to investigate placements other than the public schools for their kids, such as home school, as the public schools when it really comes down to it, are not safe at all.  Just ask little Michael Davis how safe they are.

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

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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.

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

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.

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

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.