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

Website: http://www.edlaw4students.com/

Blog: http://edlaw4students.blogspot.com/

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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.

Teacher's Termination Upheld For Sexually Explicit Craigslist Ad Not Connected To School

Some time ago, a question was sent to me via my Twitter account regarding just WHAT is enough to get a teacher terminated.  Termination is up to the individual school district involved and what is enough may be very fact specific.  However, some instruction on just what a teacher can be fired for was outlined by the California Court of Appeals, Fourth District in its decision San Diego Unified School District v. Commission on Professional Competence (2011) issued this week (May 3, 2011).

In its opinion, the Court of Appeals upheld a District termination of a teacher for posting a highly explicit sexual ad on Craigslist seeking male-on-male companionship.  The ad included four pictures, two of which were very intimate pictures of the teacher, while another showed the teacher's face.  The ad did not reference the teacher's employment, name, nor was the ad connected in any way to the teacher's school activities.  However, according to the opinion, the ad was viewed by a parent who reported it to the Principal.  Later, an investigator was assigned and the teacher was terminated.

Although the ad was personal and outside the purview of daily school activities, the Court upheld the termination for "immoral conduct," and "evident unfitness." This was based in part on the activity, the fact that a parent and the Principal had seen the ad, and also based on deference to the school district as the final arbiter of who is fit to work in their district.

Also instructive on teacher termination is a prior decision by the Commission on Professional Competence (CPC) upholding a teacher's termination for failing to get her English Language (EL) certificate for 8 years, in direct contradiction to her district's orders.  Her termination was upheld as she was found to have been unprofessional and insubordinate (see a summary here by the attorneys who represented the district).

Even though such certification was not legislatively mandated, the Court of Appeals for the Third District in Governing Board of Ripon School District v. Commission on Professional Competence (2009) found that school districts can impose additional requirements on their employees, above and beyond what is outlined in the law.  The district in that case (Ripon Unified) was required to provide access for its EL students to its programs, but could not assign an EL student to the teacher's classroom (she was the only music teacher) due to her lack of EL training.  The teacher's continued refusal to be trained got her terminated.

To be clear, I do not represent teachers in their employment law matters, but do help parents lodge complaints on teachers with districts.  As such, I wanted to provide a little flavor of a couple of the issues which can get a teacher terminated, including off campus personal conduct.  If a parent is having problems with a teacher, they should involve an attorney to file a personnel complaint,http://www.craigslist.org/about/sites and may want to investigate the teacher's on and off campus behaviors, as these can give a district the ability to terminate the teacher in question.

Best,

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

Blog: http://edlaw4students.blogspot.com/

Twitter: http://twitter.com/michelleaball

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.

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/

Blog: http://edlaw4students.blogspot.com/

Twitter: http://twitter.com/michelleaball

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.