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Showing posts with label 48915. Show all posts

Wednesday, September 14, 2011

School Expulsion/Discipline For Knife Offenses: What IS a Knife Under the California Education Code?

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.

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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?

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.

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

Thursday, June 2, 2011

Can A Parent Withdraw a Student or Move Away To Avoid A Pending School Expulsion Hearing?

As a California expulsion lawyer, I frequently meet with parents regarding pending school expulsions. One of the questions which often comes up is whether, if the parent removed the student from the school or district prior to the expulsion hearing, the school district would still have jurisdiction to expel? Yes. A school expulsion hearing cannot be avoided by running or disappearing.

Once an expellable act is alleged to have occurred and an expulsion hearing is pending, even if a student moves out of state, the expulsion hearing may still proceed. Not going to the hearing does not avoid the consequences no matter how much we wish that were so. Additionally, when the student is enrolled somewhere else, their discipline records will follow them and they may be refused admission.

If a parent has committed to not returning a student with a pending expulsion hearing to a school district, the best thing to do is usually to try to negotiate the outcome. In other words, a parent can go to district officials and try to negotiate a lesser punishment if they e.g. "don't show their face around there again..." for a certain time period. This can help to resolve the school expulsion matter pre-hearing.

Be warned that a district can still say: "Well, he could not come back anyway if he were expelled so you have to go to hearing." To overcome this, the best persuasive case needs to be made by parents even during pre-hearing discussions.

Sadly, a parent's pleas to strike a deal will often fall on deaf ears unless they involve a school expulsion attorney. A large amount of my expulsion matters are resolved pre-hearing via negotiation as this is often the cheapest and most efficient way to handle the situation. I have observed, however, that when a parent presents the same sort of offer I do to a district, they may be ignored as they are merely "the parent."

Regardless, it is always worth a shot to try to negotiate the best outcome if possible and with the strongest leverage a parent may have. Often, as a school expulsion matter can be stacked against a student, the only potential leverage is involving an expulsion attorney specializing in education law.

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

Monday, February 14, 2011

When Must a Student Expulsion Be Recommended (But Maybe not Issued)?

I earlier blogged regarding the Big 5 mandatory expulsion categories, for which a student must be both recommended and expelled should allegations be proven correct [http://edlaw4students.blogspot.com/2011/01/when-is-school-expulsion-mandatory-in.html]. THIS blog covers the list of bad acts for which expulsion must be recommended, but for which an expulsion may not HAVE TO be issued. I am not including the "Big 5" covered in the other blog in my list below.

In California, a student MUST be recommended for an expulsion for the following per California Education Code section 48915(a):

"1) Causing serious physical injury to another person, except in self defense;
2) Possession of a knife or other dangerous object of no reasonable use to the pupil.
3) Unlawful possession of any controlled substance...except for the first...ounce of marijuana other than concentrated cannabis.
4) Robbery or extortion.
5) Assault or battery... upon any school employee."

However, a mere recommendation for student expulsion under these sections does NOT mean the student must be expelled. Rather, the expulsion panel and/or school board has discretion to expel or not to expel the student.

There is also some wiggle room even with these types of offenses on the "mandatory" nature of a recommendation. Per the same Education Code section, for any of the above offenses, schools may decide NOT TO RECOMMEND EXPULSION IF the principal or superintendent "finds that expulsion is inappropriate, due to the particular circumstance." This opens a window for attack early on, if a parent can argue that THIS situation, student, etc. is different and and an expulsion recommendation should not be pursued. The principal and/or district may then choose not to put the student up for expulsion depending on the particular circumstances.

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

Friday, January 7, 2011

When is School Expulsion Mandatory in California Public Schools?

School expulsion is NOT something any parent wants their child to endure. To be removed entirely from a school district to have to attend school elsewhere (continuation school, other district, etc.) is not a fun process and a permanent mark is placed on the student's record which may come up later in life (college, job applications, etc.). As such, it is good to know WHEN an expulsion is MANDATORY for a school district. In other words, when does a school district have no choice but to recommend expulsion and thereafter expel a student?

In California there are only five cases where a public school student MUST be expelled. Please see Education Code section 48915(c) for more specifics [http://www.leginfo.ca.gov/cgi-bin/displaycode?section=edc&group=48001-49000&file=48900-48927]:

1) Possessing, selling or furnishing a firearm.
2) Brandishing a knife at another person.
3) Unlawfully selling a controlled substance.
4) Committing or attempting to commit a sexual assault or committing a sexual battery.
5) Possession of an explosive.

These are the big 5. IF the district can prove at their hearing that one of these occurred they are legally obligated to expel a student. Additionally, per California Education Code 48916, an expulsion under any of these five areas will not have a readmission review date until a full calendar year after the date the governing board votes to expel. The governing board, however, may set an earlier date on a case-by-case basis.
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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
http://www.edlaw4students.com/

http://edlaw4students.blogspot.com/