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, 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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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

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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

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

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

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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

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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

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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, 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, October 25, 2011

Suspension Or Expulsion For Knives, Guns, Explosives Or Dangerous Objects And A Way Students CAN Have Them On Campus?

By Michelle Ball, California Education Attorney for Students since 1995

What will happen to Johnny if he has a gun, knife, explosive, or dangerous object on campus without permission? We all know the usual answer, but according to the California legislature, it will depend on whether Johnny has permission to possess the item.

Under California Education Code section 48900(b), students may be suspended or placed up for expulsion if they:

"Possessed, sold, or otherwise furnished a firearm, knife, explosive, or other dangerous object, unless, in the case of possession of an object of this type, the pupil had obtained written permission to possess the item from a certificated school employee, which is concurred in by the principal or the designee

of the principal."

So, if Johnny has a gun, sells a gun, or provides a gun to someone, he can be suspended or expelled. Same difference with a knife or explosive, which seems fairly self-explanatory. With the "dangerous object" portion, schools may interpret "dangerous object" as covering practically anything, rightly or wrongly. For example, a pencil, scissors, stick, book, pillow, spit, urine, chemicals, and on and on, depending on how the object were used. As such, this code section can sometimes be stretched, properly or improperly, to attempt to meet the situation. A parent would of course argue a pillow, book, or other common object was never a dangerous object and the intent was to cover obviously dangerous objects (nunchucks, throwing stars, etc.).

Section 48900(b) provides an interesting exception which could avoid a suspension: permission to possess a gun, knife, explosive or dangerous object (this is too good to be true!). But, how any student would ever get "permission" to possess a firearm, knife, explosive or "dangerous object," is beyond me. I would suggest that any child who actually had the nerve to seek permission to bring one of these items on campus, would be interrogated and searched by today's school administrators. This would not be okay, but they would probably take such a request the wrong way and go after Johnny regardless of what the code says.

Obviously when this code was written many years ago, the legislature thought this might be possible. The only scenario I can think of is for some kind of school play, or an authorized in-class demonstration (show and tell). If "permission" is sought, make sure it is granted in writing and the principal signs off as well as the teacher granting the permission, or the kid could be toast regardless of the situation.

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

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

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.

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, 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/

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

Monday, June 20, 2011

Where Do You File an Expulsion Appeal and What Are The Time Limits for Filing?

If a student goes through a school expulsion hearing in California and are unsatisfied with the results (e.g. they lose and are expelled), they must act quickly to appeal the expulsion decision.

Per California Education Code section 48919, within 30 days of the decision by the Board of Education, an appeal must be filed with the local County Board of Education. So, if you are in Sacramento the appeal would be lodged with the Sacramento County Board of Education, Woodland would go to the Yolo County Board of Education, Roseville with the Placer County Board of Education, and so on.

The date of the decision for purposes of calculating the thirty day expulsion appeal timeline usually begins the date the Board of Education met and made their recommendation in the student expulsion matter. If a family is in a District where the Board of Education assigns the expulsion hearing to a panel, the decision is not final until the actual Board of Education rules on the matter.

It is vital that the expulsion appeal request be filed timely with the county board.

If a parent signed a negotiated agreement (often called a "stipulated expulsion" aka agreed expulsion), the appeal right is usually waived by the terms of the agreement.

If a parent will appeal an expulsion, it is important to review the matter with an attorney prior to filing, to evaluate the bases for the appeal. If a parent does not lay the expulsion appeal bases out clearly or meet the requirements, their appeal may be rejected or may fail. As such, a little legal preparation and input can be very helpful.

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, 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

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/

Friday, April 8, 2011

Parent and Student Rights In School Expulsion Hearings

A family came to my office about a month ago with a scenario which was absolutely baffling to me. Their son had been expelled in a remote district in California for an interaction with a coach. That was not the shocking part. The stunner was HOW the expulsion went down. The "hearing" was not a hearing at all and the family was left to observe the whole process. Their rights were severely trampled. Needless to say, I went in and the expulsion was immediately reversed and expunged. The boy is now back in school and everyone pretends the whole ordeal never happened. What a joke. The sad thing is, the school did not reverse itself until I officially got involved as even when the parents asserted their rights, they were ignored. This is because districts don't listen to parents on legal matters, they only listen to lawyers.

Let me tell you just some of the violations which took place:
- The family was not allowed into the "hearing."
- The family was not informed of their procedural rights.
- The family was not provided the ability to cross examine any witnesses. In fact, there were no witnesses presented by the district.
- The Superintendent was in the room while the Board of Education was deliberating.
- The County Board of Education (who the family had to appeal the matter to) was composed of the exact same board members as the school board, and the county board refused to move the matter to a neighboring county board of education. In other words, Mary Smith, Jane Doe, and Jim Black were on the school board who expelled AND were on the county school board who was to review the "school board" expulsion decision!

The list goes on and on, and I could almost not believe my ears when the parents told me this tale. I thought I was being read a fictional story. Sadly, this was not the case. As such, I want to describe in brief form some of the rights in a California school expulsion hearing:

1) The right to a hearing within 30 schooldays after the date the principal or superintendent determines a breach of the education code occurred.

2) The right to an automatic postponement for up to 30 days no questions asked.

3) The right to have written notice of the hearing forwarded at least 10 calendar days prior to the hearing date.

4) The right to have that notice include, among other things:

- the student's right to be represented by legal counsel.

- the date and place of hearing,

- a statement of the facts and charges on which the proposed expulsion is based,

- notice regarding your procedural rights at hearing (e.g. right to present witnesses, cross examine, etc.),

- a copy of the disciplinary rules of the district which relate to the matter.

5) The right to appear at the expulsion hearing.

6) The right to confront and question all witnesses and all evidence.

7) The right to present evidence and witnesses, on the student's behalf.

8) The right to have NO expulsion recommended based on hearsay (he said she said) alone.

and many more....

The above list is not exhaustive. These rights are listed in California Education Code section 48918.

Please, if your child is up for expulsion, seek advice from an attorney and know your rights. Had this family not met me, their illegal "hearing" would have stood and the student would still be expelled.

Hopefully this district and county board of education will now review and change their ways. (Yes I am a dreamer...)

The lesson from this story, children, is: Never trust your school or school district to do the right thing and ALWAYS have someone on your side.

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/