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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.

Wednesday, October 17, 2012

Social Media, Texting, Schools And Discipline: Students Beware

By Michelle Ball, California Education Attorney for Students since 1995

With the explosion of social media sites, such as Facebook, Twitter, and the like, along with almost constant texting and other electronic communication between students, schools have entered a new era of discipline. Parents need to be aware of this and caution their children about who may be watching (or find out about) what they post, text, email, or otherwise communicate.

It used to be that schools would hear a report of nefarious activity and would only have traditional investigation techniques to rely on (interviews, searches). No more. Now they have "written" evidence available on the internet and phones. Schools still have to conduct their version of an investigation, however, their investigations often become much easier with the proof lingering on electronic devices and phones.

Postings can be misinterpreted as somehow being sources of substantial disruption or threats to the school which are expulsion-worthy. For example, encouraging another student in a chat to handle a teacher problem by stating "get her" (meaning "handle it"), or laments to a "friend" containing a negative opinion about a teacher, may be mistakenly deemed threats of harm. Both students described were placed up for expulsion for such slips of the tongue which were not intended for anyone beyond the audience (friend) nor as threats of any kind.

I fought and got both students back in school with no expulsion, but this would not have happened without attorney intervention and return can never be certain. In the "old" days (not that long ago), such statements would vanish the minute they were uttered verbally to another student and would never get reported. No more. Statements on-line or on a student's phone don't disappear. Even if deleted on one student's device, they may remain on another student's computer or phone and can come back to bite.

I have had students in my office up for expulsion who thought a Facebook post was "private" and that only their "friends" could review it. However, students find out the hard way that their "friends" parents may be reading their posts and sending them to the school, or a friend may have their phone searched. An expulsion recommendation may ensue after the communications are read.

My best advice for parents who do not want to see themselves hauled in with a suspension or expulsion for matters which seemed out of reach, is to talk to your children about what NOT to post. Students should first be informed that NOTHING THEY POST ON THE INTERNET OR TEXT, EMAIL, ETC. IS PRIVATE, regardless of what they may think. Whether they can be disciplined for it legally or not is a whole different matter. Students need to simply be cautions about what they post. For, although the First Amendment DOES still exist, caution can help a student avoid discipline for "threatening" (or other) comments altogether.

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

Youtube: http://www.youtube.com/user/EdLaw4Students

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

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Wednesday, September 26, 2012

Improved, But Still Confusing CIF High School Sports Transfer Rules

By Michelle Ball, California Education Attorney for Students since 1995

Recently, the California Interscholastic Federation, aka CIF, the governing body for high school sports in California, softened their interdistrict transfer rules for the better. It is still confusing, but students should benefit from this move.

Previously, there was a single transfer allowed without a "valid change of residence" (a "valid change of residence" is moving house to house) prior to the tenth grade year. Under the amended CIF Rule 207, a student may transfer without moving, and may be able to compete at a new school after a "sit out period." This can be during any year of high school, so long as this is their first transfer without a "valid change of residence."

How this works is, say student A played junior varsity or varsity football at School X. They thereafter transfer to School Y prior to the first football game that year without a "valid change of residence." So long as this is the student's first such transfer, this football star can practice with the new team and may be able to play after an October first sit out period.

If the same student moves to School Y after the first football game is played, the local CIF office will determine the student's sit out period individually.

Other restrictions also apply (not all listed here). For example, a student may not compete in the same sport at two different schools during the same school year, and the transfer cannot be for discipline reasons. So if Student A played football at School X that schoolyear, the student could not compete for the new
School Y football team that schoolyear. Or, if a student moved due to an expulsion agreement, they also may be prohibited from competing at School Y.

For now, it should be easier for some students to switch schools and keep participating in their favorite sports. For more information, see the CIF website here. Go team!

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

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!]

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

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!]

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/

Youtube: http://www.youtube.com/user/EdLaw4Students

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

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Thursday, July 12, 2012

Does The School HAVE To Follow My Child's 504 Plan?

By Michelle Ball, California Education Attorney for Students since 1995

I get frequent calls from parents with children on 504 Plans (disability accommodations plans) which seem symbolic due to lack of implementation at school. Failing to follow the 504 Plan is completely and totally improper and schools can get in big trouble for ignoring 504s.

Some issues I see with 504 Plans are:

1) Poorly written (e.g. not adequate number or specific enough accommodations), or
2) Lack of enforcement, or
3) No 504 Plan.

Presuming there IS a 504 in place with some form of accommodations included, parents should not be faced with the issue of compliance with the 504 by school personnel. It should be written and done, right? Unfortunately, 504 implementation issues are common. For example, the 504 states that the student is to be seated in the front of the classroom, and the teacher refuses. Or, the student is to be given classroom notes, but these never arrive. Maybe the teachers treat the student like they are not disabled and refuse to do anything written in the 504.

A 504 is a legally binding document which sets forth items the school or district must provide and implement, period. If they do not, their conduct could be found to be discriminatory.

If 504 issues exist, parents can bring in an attorney to straighten things out. If attorney communication with the school district does not work, the parent and/or attorney can file a complaint with the U.S. Department of Education's Office for Civil Rights. Implementation of a well written 504 Plan can change a student's life at school, and can mean the difference between graduating and failing, good grades and bad.

It is very important that parents understand the importance of a 504 and know that they have the right to have the items in the 504 actually DONE at school regardless of balking teachers. Don't let your school fail your child by ignoring this important document.

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

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!]

Wednesday, June 27, 2012

Schools, Colleges, And Current Trends In One Education Law Office

By Michelle Ball, California Education Attorney for Students since 1995

It has been a VERY busy year for my office, as our clients come from all across California and issues run the gamut. With the internet, even MORE parents and students in trouble are finding me! So, I thought I would reflect on what the recent trends have been in my office where I focus only on Education Law.

This year, I have seen a great number of interdistrict (between two districts) and intradistrict (within the same district) transfer issues. It seems that many districts have been clamping down hard on students attending outside their area of residence. My phones have exploded with issues where kids who may have been attending a school previously are suddenly denied entry, or the student expected to go to "School A", but now has to attend "School B" which the family thinks is a bad school. It is distressing for all parties concerned, particularly the student! They don't know where they will attend, if they will have to make new friends, or what will happen.

I have also been handling a large amount of expulsions for a variety of matters, but have seen a rise in school expulsions for drug sales. These are very sad situations where a student gets caught up in the moment and they do something wrong.

I have seen more college disability-related issues lately as well. Disabled students in colleges need to ensure that they take the proper steps to notify the college of their disabilities and insist that proper accommodations be put in place. Students also need to ensure that they are mindful of discipline policies, and that if they are punished, they force the college to follow its own policies on discipline (and state law).

Special education denials abound as well, as due to financial woes, it seems school districts deny more students or limit services. This obviously leads to disputes!

Bullying by students and school staff (teachers, etc.) have hit my office, as well as expulsions for things on Facebook, in text messages, and otherwise. This is a somewhat new area of punishment and it can be confusing. I have found that many districts don't necessarily know or limit themselves to what the law requires in cases of internet or other electronic comments and can expel students technically outside their jurisdiction. Expulsion for speech on the internet while off campus crosses over into the area of free speech and the First Amendment. Students retain their First Amendment free speech rights in the school setting, although that speech can be limited (see Tinker v. Des Moines and cases since this time).

There are so many more issues as well! One thing which would help them all, and alleviate many parent complaints, is better communication with parents by school employees. I often find that if better communication had been in place, the parents never would have ended up in my office in the first place.

What have your school issues been this year?

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