sarushkaa

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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, February 15, 2012

Eight Things NOT To Do At A School Expulsion Hearing

By Michelle Ball, California Education Attorney for Students since 1995

As school expulsions are occurring at such an alarming rate to our children, it is important for parents to know what NOT to do when embroiled in an expulsion hearing.

Here is what you should NOT do at a school expulsion hearing:

1) Do not allow your child to testify. Make the district prove their case, and don't do it for them. One exception could arise if your child has already fully confessed to having "done it" in writing.
2) Do not forget to object to evidence. If the school district attempts to admit evidence which should not be allowed into the hearing record (e.g. evidence from another student), object and ask for it to be removed.
3) Do not get emotional at the hearing if you are the one making the arguments. If you do not bring an attorney with you and are the one making the arguments to the expulsion panel or board, you should not get emotional. There is no crying or extreme emotion allowed when acting as the advocate for the child. If a parent is testifying as a parent, emotion is fine, but not if your role shifts to the advocate making the case.
4) Do not forget to prepare opening and closing statements and witness questions. You must make an opening and closing statement, plus question any and all witnesses at the hearing. However, in the heat of the moment, you may forget something, so do prepare an outline and list of anticipated questions for the hearing.
5) Do not forget to submit documents. Parents should submit a stack of character letters in support of their child along with any other evidence which can prove they did not do what they are accused of doing. Gather and bring to the hearing all relevant documents and ample copies for all parties.
6) Don't take it personally. The school expulsion hearing may feel personal, but don't take it that way. Act professionally at all times, or your credibility may be ruined.
7) Don't forget the district will not "be nice" in the hearing. Although everyone may be polite, this is war against your child. Parents cannot go into an expulsion hearing believing it is a "light" process or procedure. Expulsion hearings are very serious and have serious consequences. Take them that way and you have a better chance of winning.
8) Don't forget to bring witnesses to support your case. Bring students or others with you to the hearing to support your case via live testimony. If you can't get a hold of them, you need to request they be subpoenaed by the district.

These are some key items all parents going into an expulsion hearing should know. Also, it is usually best to bring an attorney with you to the hearing, but the above should help if you are on your own.

Best of luck in battling the lions when they come after your son or daughter. I always tell my kids I will "slay any dragons" for them, and an expulsion is something you need to defeat, for like a dragon, a school expulsion could leave them scarred for life.

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!]

Friday, February 3, 2012

California School Expulsion Case: John A. v. San Bernardino, An Oldie But Goodie From The California Supreme Court

By Michelle Ball, California Education Attorney for Students since 1995

Parents often need all the help they can get in handling school expulsion hearings. One of my favorite cases to attack expulsion hearings for an utter lack of proper evidence is John A. v. San Bernardino City Unified School District, decided in 1982 by the California Supreme Court.

In this beautiful case, the California Supreme Court evaluated an expulsion of "John A." for allegedly being involved in a large altercation not witnessed by anyone but students. At John A's expulsion hearing, no direct witnesses (e.g. students who actually saw or were involved in the fight) testified, other than John A. Rather, the district's case revolved around reading a summary from the school into the record and written witness statements. When John A. spoke, he explained that he did not strike nor kick the boys involved. Rather, he said the boys were "play boxing." He denied any racial connection, that he yelled derogatory terms, or that he chased anyone. He also disputed the injuries alleged to two of the participants.

The district expelled him for an "unprovoked attack on two students." On appeal to the county board of education and even the lower court, the expulsion was upheld. Although the lower court later allowed the district to submit 30 declarations showing that there had been threats against students involved in school hearings, it appears that no evidence of any threat from John A. to the witnesses was provided.

The California Supreme Court, overturned the expulsion, ordering it expunged from John A's records. In its decision, Justice Broussard explained: "A decision of the governing board to expel must be supported by a preponderance of the evidence..." and "It [district] may not rely on administrative reports when evidence is conflicting and witnesses are readily available."

The court also discussed the denial of the right to cross examination and the evidence supporting the lack of witnesses (alleged witness danger), stating: "While the risk of retaliation may be substantial in some cases, it does not warrant board reliance on reports in all cases or in the instant case where there is no showing or finding of a significant and specific risk of harm..."

This case is significant in that it reinforces the fact that a student may not be expelled based on hearsay alone (see also Education Code §48918(f)) and that if the district wishes to rely on written testimony instead of calling live witnesses, they must show that "disclosure of identity and producing the witnesses would subject the informant to significant and specific risk of harm...."

This case is music to my ears. It not only backs up the education code, but gives an example of what districts cannot do. They cannot expel a student based solely on written statements without direct testimony showing the alleged act(s) occurred. Also, if they wish to exclude a witness and use his or her written statement instead, they must make a specific showing regarding harm. The legislature defines this further in Education Code 48918(f) as "unreasonable risk of psychological or physical harm."

For now, parents embroiled in an expulsion hearing must be aware that if their child did not confess to the alleged "crime" he or she is accused of, the district must provide at least some direct testimony at the expulsion hearing. If the district wants to substitute written statements for live testimony, they must make a specific showing of potential harm to the witness should they testify. This is an area which is often lacking and can be a great argument for appeal. Districts frequently fail to bring anyone who actually saw the alleged incident to the expulsion hearing, which could give the county board or courts a reason to overturn the expulsion altogether on appeal.

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, January 23, 2012

School Expulsion Hearings: Parents Have The Right To Request Witnesses Be Subpoenaed

By Michelle Ball, California Education Attorney for Students since 1995

School expulsions seem to be everywhere now. Expulsion hearings are very important, and parents need to know their rights. One of these rights is the right to request that subpoenas be issued to potential witnesses when a school expulsion is pending.

The right to subpoena witnesses (order to appear before a body or face consequences) is an important part of our judicial system. Courts and other agencies must be able to hear the complete case, listen to all the evidence, and see if the "story" turns out to be true. This subpoena right also exists in the context of school expulsion hearings, but the subpoena power rests with the school district in question.

California Education Code section 48918(i)(1) states as follows:
"Before the hearing has commenced, the governing board may
issue subpoenas at the request of either the superintendent of
schools or the superintendent's designee or the pupil, for the
personal appearance of percipient witnesses at the hearing. After the
hearing has commenced, the governing board or the hearing officer or
administrative panel may, upon request of either the county
superintendent of schools or the superintendent's designee or the
pupil, issue subpoenas..."

What this means is that parents may request that the district involved issue subpoenas for any actual witnesses who may have seen what occurred. So, if Johnny is alleged to have stolen money and there was a witness, parents may ask that that person be ordered to testify at the hearing. Often districts do NOT subpoena witnesses unless a parent asks them to. Rather, districts instead attempt to get a child expelled based on sworn statements alone with no direct testimony. This could cause trouble for a district on appeal if there is no confession.

If there is an important witness who will help the child's case, parents cannot expect the district involved to subpoena that person. In fact, why would the district want to subpoena them as it would ruin their case?! As such, parents need to actually request that witnesses be subpoenaed by the district in advance. If the district will not issue the subpoenas, well that is another story for another day and a potential appeal to the board looms. Chances are that most districts will subpoena witnesses when this is requested by parents.

This all may be confusing, so don't go it alone. Parents, if you don't know your rights, bring someone in who does...

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, January 9, 2012

Sexual Battery As A Basis For Expulsion, Suspension, Or Other School Discipline

By Michelle Ball, California Education Attorney for Students since 1995

I often speak with parents who are shocked and dismayed that their child has been alleged to have committed a sexual battery. This word and allegation seem to be thrown around willy nilly without thought or understanding for what the REAL definition of sexual battery might be. As such, understanding what "sexual battery" actually means is important and should be understood by everyone, lest such an allegation mar a student's record and reputation for life.

I am frequently surprised when I see suspension forms and/or expulsion recommendations containing the allegation of student "sexual battery." This allegation is very heavy, and is specifically defined in the Education and Penal Codes. This term should not be used unless proof actually exists to support the claim.

California Education Code §48900(n) authorizes schools to suspend or expel students for sexual battery. Rather than contain a definition in the Education Code, §48900(n) references California Penal Code section §243.4 for a definition of sexual battery.

Per Penal Code §243.4 the elements of sexual battery, in a nutshell, are:

SEXUAL BATTERY occurs if:
-- A person touches a victim's intimate part and/or forces the victim to touch them or someone else, AND
-- This is against the will of the victim, AND
-- The touching is for the purpose of sexual arousal, gratification, or abuse, AND the act occurs:
* While the victim is unlawfully restrained, OR
* While the victim is institutionalized for medical treatment and is seriously disabled and/or medically incapacitated, OR
* The victim is unconscious and is touched by a professional who falsely represented the touching was for a professional purpose.

[please note this is my summary only and is not a quote of the statute- please click link to get complete code]

Now which of these MAY apply with California students? Any, but the one which would typically fit in a school setting is touching while a person is unlawfully restrained, correct? The second scenario (institutionalized touching) could potentially occur if the victim and student were e.g. placed in residential treatment or the student was visiting a hospital, which is an uncommon occurrence. The third one (professional) seems to apply to e.g. therapists, doctors, or other such individuals.

If the charge of sexual battery is levied against a student, the parents need to immediately bring the matter to an education attorney to review the facts and circumstances so this allegation can be evaluated and confronted promptly. If not, the student may have this heinous allegation haunt them for years to come. They may also be cited by the police for alleged sexual battery when none occurred.

Additionally, parents may be talked into signing an agreement (expulsion, suspension, behavior contract, etc.) which contains a school sexual battery charge. Or, if they choose instead to go to e.g. an expulsion hearing, they will present their defense of "no sexual battery" to an expulsion panel of non-legal personnel (district employees) who may not grasp just WHAT a sexual battery is and/or whether the student involved actually sexually battered someone. Even if a parent brings the law with them, or attempts to explain what a sexual battery is to the expulsion panel, they may not be listened to as they are not attorneys. As attorneys are the only ones licensed to interpret the law, without an attorney, a parent's best argument of NO SEXUAL BATTERY, may still fall on deaf ears.

Parents, it is vital that you seek out legal help if your child has the charge of sexual battery levelled against him or her. Failing to do so, can have horrible consequences and your child may be marred by such allegations for life. Don't make the mistake of misunderstanding just what you are getting into when facing a sexual battery allegation.

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!]

Tuesday, January 3, 2012

The First Things To Do When Your Child Is Suspended From School (And Even Before!)

By Michelle Ball, California Education Attorney for Students since 1995

Parents are not usually prepared for a school suspension, which can come as a shock, and completely disrupt the day, week, or month (if it is extended prior to an expulsion). As such, this is an important article to read and pass on, as you never know when you may get "that call" from the elementary, junior high, or high school telling you to come pick up your child as they have been suspended. What do you do when you get the call your child is being suspended?

1) TAKE DOWN ALL RELEVANT INFORMATION IN WRITING: In that initial call, during meetings, in talks with your child, or otherwise, write down all information and keep it handy. Ensure you note down WHO you are talking to, WHAT is alleged to have happened, WHERE the event(s) allegedly took place, WHAT your child is alleged to have done, WHEN the activity supposedly happened, and HOW everything went down. Yes, this is "Journalism 101" but I was on the newspaper staff in high school (it paid off!). This information is critical to getting the whole story, and verifying you know everything.

2) STAY ON THE OFFENSE: In the school discipline process, often it can feel like "nothing can be done about it," and that a parent has no control. This is not true. Parents CAN do something about it and should always stay on the OFFENSE, going to bat for their child and attempting to SOLVE the problem at hand (suspension or otherwise) in the most positive way. Taking the steps here can help you to stay positive and may garner beneficial results.

3) MEET WITH SCHOOL STAFF AND WITNESSES: Go down to the school immediately after the call, if possible, BEFORE your child leaves and meet with the staff to go over exactly what is alleged. LISTEN a lot! Gather the facts. Try to set up a meeting with the alleged witnesses to the situation. For example, if the PE (Physical Education) teacher saw an alleged exchange of knives, weapons, drugs, etc. see if they can come in to the office RIGHT THEN to discuss the matter. Take copious notes as usual.

4) DON'T SIGN ANYTHING: Need I say more? Don't sign the suspension form (be ready and willing for the school to note "parent refused to sign"on the form). Don't have your child sign anything either.

5) RESTRICT THE INFORMATION YOUR CHILD PROVIDES: During the entire suspension and pre-suspension (e.g. investigation) process, it is not a good idea to have your child answer questions, write or sign a statement, or give any information. Politely refusing to provide information may be very difficult, as it is tough to not give into pressure, taunts, threats of increased punishment, intimidating adults, a cop dangling potential juvenile detention, or otherwise. A child may be scared, but parents, you must teach your child to politely decline to give, write, sign, etc. information or a statement. You will have to work out how best to achieve this goal in a way in a way that does not look like the child is being difficult and/or is guilty. Please note, this is MOST important with school expulsion, but as what is said during a suspension investigation could be used for expulsion, it is also important during the suspension process. Make the school do the work and don't hand them an admission. Admissions can lead to not only suspensions, but also expulsion, a ticket from the School Resource Officer (cop), and other bad things.

6) DO NOT HAVE YOUR CHILD IN THE ROOM DURING YOUR MEETINGS: Self-explanatory considering number 5. We don't want the school to be inspecting your child's reactions.

7) ASK FOR A LESSER AND/OR NO PUNISHMENT: Remember "It can't hurt to ask?" Well, that statement is as true here as everywhere in life. Ask for no punishment, or an alternative punishment (e.g. detention?), and that is what you may receive.

8) FILE A SUSPENSION APPEAL: Occasionally, districts actually have a suspension appeal process. For example, in Elk Grove Unified School District (Elk Grove, California), there is an actual written process and forms to complete. Most districts do not have any formal suspension appeal process in place, BUT that does not mean you should not inquire about an appeal and go up the administrative line. Ask the school and the district if there is a suspension appeal process, THE DAY OF THE SUSPENSION. If there IS a process, follow it. If there is not, simply go up the chain of command. If you met with the Vice Principal initially, call the Principal next, then the District office, etc. Make some polite noise and you may get the suspension overturned or shortened.

Parents, please keep this list handy and pass it on to anyone you know who has kids in school. You may not think "this could happen to you," (or your friends) but it happens to thousands of parents weekly. For the most part, parents simply don't know what to do, or how best to proceed when struck with a student suspension. You can do something about 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

[please like my office on Facebook, subscribe via twitter and email, and check out my videos on Youtube!]

Monday, December 12, 2011

California College Suspensions And The Right To A Hearing Within Ten Days

By Michelle Ball, California Education Attorney for Students since 1995

Pursuant to California Education Code section 66017, a California Community College, California State University (CSU), or University of California (UC) may suspend a student for willful disruption, to protect lives or property, or to ensure the maintenance of order. [This is not an exhaustive list.] However, if the suspension by the college is issued immediately (e.g. the student is kicked off campus right then), the student is legally entitled, per this section, to a hearing within 10 days.

If the college suspension is not issued immediately (e.g. the student is still allowed to attend classes) or is merely proposed, 66017 states that the hearing must be "prompt" which may or may not mean "within 10 days." I would argue the college student is still entitled to a hearing within that amount of time.

Section 66017 also instructs colleges to adopt procedures and appoint personnel to deal with discipline matters on campus. Other code sections also apply depending on the type of college involved. Needless to say, I have seen students suspended with no hearing in sight, which is unacceptable.

If you are suspended from college, insist on a prompt hearing within 10 days so you can get back to your studies. We all know how long ten days can be away from college classes and the impact can be devastating. When I attended the University of California, ten days was more than one tenth (1/10th) of my whole quarter! I would certainly have missed a lot of classes, and my grades could have declined significantly, with such an extended period of absence.

Simple knowledge of timelines and assertion of rights can help college students survive the surprise of an unexpected suspension. Hiring a student attorney 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/

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

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

Monday, November 28, 2011

Suspension or Expulsion For Profanity At School? It's Supposed To Be Habitual

By Michelle Ball, California Education Attorney for Students since 1995

California parents can often be shocked when they receive a call stating their child is being sent home for five days for saying a bad word at school. I have seen a lot of discipline matters centered around language, including swear words. However, unless the profanity is habitual, a suspension or expulsion may not be legal.

Per California Education Code section 48900(i) a student may be suspended or expelled for engaging in "habitual profanity." Note the code does not say a child may be suspended for "profanity," but rather HABITUAL profanity. This wording is important, and not always understood by the school imposing the discipline.

Habitual is defined in "thefreedictionary.com" as follows (adjective form):

1. done or experienced regularly or repeatedly
2. by habit
3. customary, usual

In other words, habitual profanity must involve swearing as a regular activity of the student. One slip up of saying the "F" word or the "S" word is NOT grounds for suspension or expulsion per the California Education Code. However, easy as it seems to read the statute, I have seen discipline imposed for simply saying a bad word on a single occasion. Technically, this is not a legal basis for suspension.

As it is often harder to remove a record, or reverse a suspension (suspension appeal), than to prevent a suspension in the first place, all parents should discuss language at school with their children. Profane speech may result in a student having a permanent black mark which may haunt them beyond high school. Suspensions (and expulsions) must be revealed when inquired about by colleges, or even when seeking to enter various professions (even becoming an attorney).

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

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

Tuesday, September 27, 2011

Prerequisites to School Suspension- Are Alternatives To Suspension Required?

School suspensions are issued for almost anything nowadays. Wearing a costume, talking back, getting a drink of water when not authorized- all items for which I have seen suspensions issued. Are there ANY prerequisites to issuing a school suspension in California? Are any alternatives to suspension authorized or mandated? Yes and no.

Per California Education Code 48900.5, suspension "shall be imposed ONLY when other means of correction fail to bring about proper conduct." This strong language requires "other means of correction" first right? Right??? Yes, BUT it will depend on the offense.

First, what does "other means of correction" mean? A good talking to, detention, Saturday School, sitting in the office, or other punishment which will teach the kid a lesson.

The words "shall be imposed only when..." seem obvious enough, but are they? Unfortunately, 48900.5 also excludes various offenses including but not limited to fighting, threats, knives, drugs, robbery, and even merely disruptive students This severely limits the requirement of alternatives to suspension.

Parents CAN still use this section to argue for alternatives to suspension, particularly with a minor offense and a kid with a limited discipline history. It also can't hurt to have an education attorney make the arguments for the parents.

Now, I am not a school administrator, but I am a student attorney, and have seen many rules and laws ignored by schools until contacted by my office. Regardless of how good a parent makes an argument, schools tend to ignore any "legal interpretation" until that interpretation comes from an attorney.

When parents are faced with suspension for a minor infraction with no big discipline history, they may want to use Education Code 48900.5 to try to obtain an alternative punishment so their kid does not have to sit home, missing out on his or her education.

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

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..

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.

P.S. If you like my blogs, please "like" me on Facebook, and subscribe to my email updates and Youtube channel (see links up and to the right).

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

Thursday, September 1, 2011

Parents Rights in Public Schools- Sixteen Rights (And Counting) Which Parents May Not Know They Have

California Education Code 51101 has a handy list of public school parents' rights neatly packaged for use when push comes to shove in California schools. Some of these rights may come as a surprise to parents who are being denied a simple parent-teacher conference, can't get their child's records, are denied volunteer opportunities, were never given the school policies, or are having other difficulties in the public school environment.

Section 51101 affords the following rights to California public school parents (be advised this is an abbreviated list and is paraphrased):

1) To be "mutually supportive and respectful partners" with the school.

2) Within a reasonable time to observe their child's current classroom(s) and/or future classrooms if transferring.

3) To meet with the teacher(s) or principal within a reasonable time of their request.

4) To volunteer in the school or classroom, under supervision of school employees and with approval of the teacher (if volunteering in the classroom).

5) To be notified if their child is absent on a timely basis.

6) To receive the results of standardized and statewide tests.

7) To request a particular school and receive a response.

8) To have a safe environment supportive of learning.

9) To examine curriculum materials of their child's classes.

10) To be informed of their child's progress and whom the parent should contact if there are problems.

11) To access their child's school records (see also Education Code 49069 which requires provision within 5 business days).

12) To be provided with data regarding skills and standards their child is to meet.

13) To be informed in advance of school rules, including discipline rules and procedures, attendance policies, dress codes, and procedures for visiting the school.

14) To be informed regarding any psychological testing the school does and to refuse the testing.

15) To participate in parent advisory committees, schoolsite councils, or site-based management leadership teams.

16) To question anything in their child's records with which they disagree.

Now, parents, did you know you had all these rights???? Now go out and use them.

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

Monday, August 15, 2011

What Happens When Your Child Is Put Up For Expulsion From School?

What happens when your child is put up for expulsion? What is the process? What happens at the expulsion hearing? Who handles expulsion appeals?

Check out my video now to find out!

This video breaks down the process and provides an outline of what usually happens in California school expulsion matters, from the suspension and expulsion recommendation through hearing and appeal.

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

Tuesday, August 9, 2011

California School Suspensions for Disruption or Defiance- An Everyday Occurrence

One of the vaguest and most troublesome sections of the California Education Code for public school students is the portion which allows schools to suspend, or even expel, students for disruption or defiance. The problem with this is that the code can be (and is) applied to practically every type of behavior which brings extra work or difficulty to the school staff (what doesn't?). Parents need to know what is going on when they receive a call saying their child is being suspended for disruption or defiance.

Under section 48900(k) of the Education Code, a child may be punished if they:

Disrupted school activities or otherwise willfully defied the valid authority of supervisors, teachers, administrators, school officials, or other school personnel engaged in the performance of their duties.

Now, isn't that clear?

This is the "catch-all" discipline section of the Education Code. It catches almost all of student conduct which a school wants to punish not covered by other code sections. It really gives school officials a green light to punish, sometimes for the most minor infractions imaginable.

For example, I have seen students suspended when an investigation had to be conducted by administrators. Now, the students were not punished for the "something" someone allegedly did, but because administrators were bothered and had to do an "unusual" activity- conduct an investigation. Well, if that were the standard, there should be non-stop suspensions as when aren't administrators bothered by students on an hourly basis? And, isn't conducting investigations part of what administrators do? Why punish the students for something predictable like investigating an alleged situation? This should not be a basis for suspension.

I have also seen students punished for getting a drink of water during their physical education class. Apparently this was "defiant," to take a drink in clear visibility of the teacher (who was across the field while the student was near a water fountain) without permission. Need I say more?

Another one which comes to mind: students have been punished for WATCHING a fight. Now, as far as I know, watching a fight is not punishable, even under THIS section, but needless to say Districts can sometimes stretch their authority to attempt to cover just standing there and looking!

Now of course, it really is up to each individual school as far as HOW they apply this code. For example, one school may rarely have suspensions for disruption or defiance. Others issue these hourly. It all depends on the personnel in charge.

When you are called in to be told your son or daughter is being suspended from a California public school for disruption or defiance, know that often your logical arguments showing there was no disruption or willful defiance may fall on deaf ears. The next step is usually to follow the suspension appeal process (if there is one), and/or pursue some other form of potential remedy such as filing a records correction request after the fact.

Best of luck out there.

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

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/

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

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/

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

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/

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/

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/

Monday, April 25, 2011

Can Schools Just Involuntarily Transfer My Child to a Continuation School?

Okay- you are going along in life, minding your own business. Your kids are fine, attending school, seem to be able to read and all is right with the world when suddenly, you receive a letter, call, or see sky writing telling you that your son who attends Local High School is now INVOLUNTARILY TRANSFERRED to the... CONTINUATION SCHOOL! Can the district do this? Yes they can, provided they jump through a few hoops.

First hoop: per California Education Code section 48432.5 notice of the intent to involuntarily transfer cannot come by sky writing, but must come via written notice. In other words, you receive a letter which must state that an involuntary transfer is pending, but that you have a right to request a meeting with a school district representative. Note this meeting will not just occur- you have to request it. Please do.

Second hoop: If you request the meeting, at that meeting, you will be informed of the basis for the involuntary transfer and "shall have the opportunity to inspect all documents relied upon, question any evidence and witnesses presented and present evidence on the pupil's behalf."

I would recommend you ask for any documents PRIOR to the hearing along with the basis for the transfer, witnesses who may be called, etc. Otherwise, how can you present your defense?

Third hoop: The transfer must be based on the fact that the student committed a suspendable act or that they have been habitually truant (reported truant on 3+ occasions - see Ed Code 48262) or irregular in attendance (see my other blog on truancy).

Fourth hoop: The decision to actually involuntarily transfer, or not transfer, a student to a continuation school must be in writing. In other words, you get a second letter. This letter must indicate if the transfer will be periodically reviewed, the procedure for review, and the facts supporting the involuntary transfer.

Fifth hoop: No one making the decision can be on the staff of the school which is kicking the student out.

Sixth hoop: This is to be something done only after "other means fail to bring about pupil improvement." However, even with a first suspension a student may be involuntarily transferred if their presence presents a danger to "persons or property or threatens to disrupt the instructional process."

Seventh hoop: The involuntary transfer can't go longer than 2 semesters including the current semester unless the policy of the district allows for only yearly review.

If they do not jump through all the hoops you may be able to attack the involuntary transfer for not meeting legal requirements.

Also, please note that you should check your school district's policies on involuntary transfers as well, which might offer even more hoops and an appeal process. Hope this helps!

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/