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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.

Monday, August 27, 2012

School Suspension Or Expulsion For Bullying Under California Education Code 48900(r)

By Michelle Ball, California Education Attorney for Students since 1995

Bullying has been a hot topic recently, due to its prevalence in schools: on the bus, in the classrooms, in the bathrooms, and generally wherever students interact. Do you remember the school bully? Or, maybe you have seen movie depictions such as the red haired youth with his raccoon fur hat who terrorizes the main character Ralphie in A Christmas Story. Did you know that students can be suspended or expelled from school for bullying?

Per the California Education Code, section 48900(r), students who bully can be kicked out of school. Such discipline is limited to pupils in the fourth grade or above and the legal definition of bullying is as follows (summarized below):

"Severe or pervasive physical or verbal act or conduct, including communications made in writing or by means of an electronic act ...that has or could be "reasonably predicted" to have the following impact on a "reasonable pupil:"

1) Places the student in fear of harm (for themselves or their property).
2) Has a "substantially detrimental effect" to the student's physical or mental health.
3) Causes substantial interference with the student's academic performance.
4) Causes substantial interference with the student participating in or benefiting from "the services, activities, or privileges provided by a school."

A "reasonable pupil" is defined as: "a pupil, including, but not limited to, an exceptional needs pupil, who exercises average care, skill , and judgment in conduct for a person of his or her age, or for a person of his or her age with his or her exceptional needs."

What this means in English and how this will play out is yet to be seen. The legislature did attempt to limit the application of this statute in the fact that they require "substantial" interference in three out of four of the categories. However, they did not provide a definition as far as what amounts to "substantial interference," nor explain what a "substantially detrimental effect" might be. And I don't know about you, but some of the things kids do could put almost anyone "in fear of harm."

Most likely the schools will require a low level of proof. The vague language here is doubly concerning when one considers that in the majority of expulsions, parents and students appear before a panel of hand-picked District employees who will hear and decide on the matter and the punishment.

Parents really need to ensure that they involve proper legal help if their children are up for expulsion for bullying as the right to attend school is an important right to fight for.

Best,

Michelle Ball
Education Law Attorney
LAW OFFICE OF MICHELLE BALL
717 K Street, Suite 228
Sacramento, CA 95814
Phone: 916-444-9064
Fax: 916-444-1209
Email: help@edlaw4students.com

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

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

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

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, 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

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.

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, 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/

Wednesday, January 26, 2011

Yes, You Do Need An Attorney For A School Expulsion

Does a parent really need an attorney to help them resolve and/or represent them at a school expulsion hearing? Yes, yes and yes!

Expulsions are serious matters and result in a permanent mark on the student's record which can arise later in life, such as during application to college and when attempting to get certain jobs (this even comes up when applying to be an attorney). Additionally, once expelled, a student cannot return to their school district for a set period of time and may have to attend school in a less savory environment, such as a continuation school. And, if an expelled student does not meet the "rehabilitation plan" terms in the expulsion, they may never return to that district.

Parents are also going up against folks who "do this for a living" who are ultimately familiar with the expulsion hearing rules and requirements e.g. for witnesses, for evidence, for procedure, and for winning. Parents are usually new to the whole expulsion process and this is a distinct disadvantage. Its a bit of a David and Goliath type of situation.

Parents also must not presume a district will "see reason" if they just hear their story. I have too many times heard from parents AFTER an expulsion hearing that they "trusted" the district to "do the right thing." Sadly, they did not and the child was expelled. Unfortunately, appeal rights can be limited and it is more difficult to fight an expulsion after the fact than prior to it occurring. This is not surprising as a parent must plead their child's case in front of a panel of individuals paid by the district as employees (who are usually disciplinarians). I would not bet my money that they would naturally have mercy on a student (they don't!).

Parents need leverage as the deck is stacked against them. Usually, the only leverage in expulsion matters is an attorney.

I recently received the following from a happy client who could not get anywhere in an expulsion matter before the expulsion panel, and even the school board, until I became involved:

“My son was expelled from the Elk Grove Unified School District for one semester. Elk Grove High recommended two semesters expulsion. I recommended dismissal based on lack of evidence and parent notification violations. I lost the case. The Expulsion Panel recommended one semester expulsion. I quickly appealed the case to the Elk Grove Board of Education. I was also allowed to appeal the two home suspensions to the school principal. During this time I hired Education Attorney Michelle Ball for legal advice. What I liked about Michelle is that I could pay for half hour and one hour sessions, which made it affordable. I would have my questions ready and she would provide legal answers and information on the education codes. She was a wealth of knowledge.

I lost my case with the Elk Grove Board of Education and the school principal upheld the two home suspensions. I then appealed the two home suspensions to the second level, which was the Student Services and Health Department. Knowing that the District would keep playing games with me, I hired Michelle to handle the second level appeal for the expulsion, which was the Sacramento Board of Education. Michelle wrote a letter to the District’s attorney (I call it the “power letter!”) informing them that I had retained counsel for the second level appeal. Shortly after the letter was sent the District dropped the expulsion. I did the research and had substantial evidence to prove that there were parent notification violations and lack of evidence to convict my son of a 48900 (c) violation, but it wasn’t until I hired Education Attorney Michelle Ball to handle my case, that my voice was heard.” - RC

Best of luck,

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

Monday, January 24, 2011

True Stories of California School Expulsions

I have been representing parents and students since 1995 and often reflect on all the stories I have heard. Some interesting ones come to mind in the expulsion arena.

For example, some years ago I met a family whose young son was up for expulsion for positioning his FINGERS to resemble a gun (e.g. the thumb and index finger) and going "pow pow" to another student. For this, the student was UP FOR EXPULSION. When we went to the hearing the teacher actually went off on how scary that was. Fingers? What threat do they pose? The kid was playing with another student and had no access to any weapons. Unbelievable. I know there are teachers out there who could explain this, but I believe this went just a tad overboard.

Another family found their son up for expulsion for having a "mental list" of potential student targets. Now in case you don't know, a "mental list" is a list that is in someones head-- allegedly. It is not on paper, nor is there actual physical evidence of the "mental list." There was no evidence this "list" existed other than student rumor which was vague to say the least. The kid had no history of violence, no evidence in the physical world of any threat, danger, anger, etc. but was placed up for EXPULSION. This was in the days after Columbine, but that still does not excuse a recommendation for expulsion with no support and no evidence.

I have seen male students targeted by classmates who felt scorned. For example, a girl who a boy rejected for a relationship, conspired with her friends and the 4 girls wrote similar stories of alleged harassment by the boy which were unfounded. The school had no choice but to investigate and to "do something" as schools cannot ignore sexual harassment allegations. The boy was placed up for expulsion based on the false allegations. I have seen this type of scenario more than once, so boys, be warned and be careful.

I saw a high schooler up for expulsion for an internet conversation about a teacher where my client said something supportive to a student who was upset. She ended up being recommended for expulsion. Be warned, the internet is being monitored by schools and districts for expulsion material.

I have also seen students with a long history of discipline issues NOT put up for expulsion, while other students with a first offense were placed up for expulsion for the maximum term.

Now of course, I often resolve or negotiate these situations and solve many problems, but the mere fact that students are even being put up for expulsion for e.g. making their fingers look like a gun is startling to say the least.

Be careful out there.

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/