Thursday, March 26, 2015

One More Tool To Stop Your Child's Expulsion: No Proof Of Other Means Of Correction Or Physical Danger

By Michelle Ball, California Education Attorney for Students since 1995

With school expulsions, it can sometimes seem hopeless.  The school may be able to prove a child "did it," and isn't that it?  Not necessarily.  Schools have at least one more hurdle to jump over to expel a child in most cases (excluding the big 5 mandatory expulsion offenses): proving that other types of correction have been attempted or repeatedly failed and/or the act itself makes the child physically dangerous.

Specifically, California Education Code sections 48915 (b) and (e), require (for non-mandatory expulsion offenses) the following:

[A] decision to expel a pupil for any of those acts shall be based on a finding of one or both of the following:
(1) Other means of correction are not feasible or have repeatedly failed to bring about proper conduct.
(2) Due to the nature of the act, the presence of the pupil causes a continuing danger to the physical safety of the pupil or others.

What does this mean?  This means that the school not only has to prove the act alleged occurred, but also that other means of correction would not work, have been tried and failed, OR the act itself is so heinous that if the child accused returned to school, he/she would present a "continuing danger" to the "physical safety" of themselves or others.  

Other means of correction could be something like the following:

1)  Behavior contract
2)  Counseling
3)  Education
4)  Service at school or in the community
5)  Suspension itself
6)  A sit-down lecture/talk

...or practically anything that can be imagined to address the alleged offense. 

If the allegation is that correction has already been tried by the school but repeatedly failed, a close inquiry of the prior correction attempted should be made as far as relevance to the current situation.  If a kid is in trouble for theft- did he have prior theft corrective actions or not?  

With the physically dangerous branch of the inquiry, the act must be looked at to see if the action makes the child physically dangerous to others.  So, if the student were in a fight, brought a knife, put something untoward in another person's drink, made written or other threats, etc.  the school would use this to allege the student would be a physical threat were he/she to return to school.  

However, if the student is accused of something more minor, such as taking something, swearing repeatedly, or other act which shows no future physical threat, a parent can argue the student will not present a physical threat were he to return.

I frequently see this proof requirement ignored by schools with no proof of anything at hearing and a summary statement in the school documents.  However, these are legal requirements.  If one of these cannot be proven, even if the underlying offense can be, the student cannot be expelled (in the non-mandatory expulsion categories).

Arguments on these matters should be made at the hearing, and likely will need to be made on appeal to the local County Board of Education if the school expulsion panel/board do not seem to understand the arguments or fail in their proof.  Often these questions are glossed over and really not proven in any way.  This opens a door for parents to use this to their child's advantage and maybe to stop or reverse the expulsion. 

Just one more weapon to arm yourself with when preparing for expulsion war.

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

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

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.

Thursday, February 12, 2015

Filing A CIF Appeal On Sports Denials, How Does The Hearing Process Work?

By Michelle Ball, California Education Attorney for Students since 1995

Has your son or daughter been banned from playing sports by the local CIF office due to an alleged "sports motivated" transfer?  Is your initial sit-out period being denied on your first change of schools?  Or is your child banned for some other reason which you dispute?  If so, it may be time to move forward with a formal appeal to the State CIF Appeals Office.  How does this process work?  

How things go with an individual school/site/student can vary, but usually the process starts before most parents realize the seriousness of the situation.  Let's take transfer eligibility as our example.  Other issues may also be sent to the local CIF office and a similar process would occur.

If a parent is lucky, they may be notified that their child's transfer eligibility is being sent up to the local CIF Commissioner.  If they are really lucky, they may be notified that the eligibility has been challenged by another school or person in advance.  Not many parents are that lucky.  As such, all parents should provide ample documentation to accompany the transfer eligibility on its initial journey to the local CIF section.  Yes, in many cases this may be overkill, but in some cases it can prevent an annoying and time-consuming appeal.  

So, the first step in the appeal process is to try to avoid any future appeal by providing good supportive documentation with the transfer eligibility form when it first goes to the local CIF Commissioner.  Otherwise, a parent may discover too late that someone gave the local Commissioner a slew of documents making allegations regarding the student playing which went unopposed, and of course, the CIF Commissioner ruled that the child cannot play.  

If the student's eligibility to play is denied by the CIF Commissioner, the parent should receive a letter in the mail from CIF stating their child cannot play, perhaps due to "pre-transfer sports contacts," "sports-motivated transfer," "discipline causing the transfer," or some other reason just as baffling.  If this letter comes, the parent's only option will be to proceed to an appeal via the CIF state appeals office.  
Within 15 business days (dates/timelines may always change- always re-check CIF bylaws) of the date the letter is mailed out from CIF, the family must submit a "Request for Appeal of Section's Decision" [see the CIF Guide here for more information].  In the "Request for Appeal," parents must list the reasons for their appeal and the basis for overturning the Commissioner's decision.  

A filing fee (currently $150) must also be provided.  Students who qualify for the free or reduced lunch program at school may have their fee reduced.  Hearing documents must be mailed to the CIF Appeals Office noted on the form.

After the CIF appeal request is submitted, a hearing date will be set.  "New" documents supportive of the appeal must be provided no later than 8 business days (as of 2/15) prior to any hearing date set.  If documents which are not "new" are provided, this may cause a delay of the hearing.  This is another reason why it is very important to submit documentation when the initial request goes to the section Commissioner.  

CIF documentation notes that parents have an option to opt for a single panel member to review their matter and/or a three person panel.  I prefer the three person panel.  Panel members are culled from a CIF list of people who are generally current or retired school, league or CIF employees who are not connected to the parties involved.  Parents may bring an attorney if they so desire, but notification to CIF is required at least 5 business days before the hearing.

When the hearing date arrives, both parties (parents/student versus CIF Commissioner) have a limited time to present their cases, witnesses and evidence, which is explained by the hearing officer.  Both sides are responsible for bringing their own witnesses to the hearing.  
After the hearing, the panel will deliberate and a decision must be mailed within 15 business days.

I have been surprised many times by the wild allegations which can be thrown around in sports matters.  These seem to come, at times, from fiction novels. Depending on the seriousness of your situation and the importance of your child playing sports, you may want to involve an attorney in your CIF appeal so the attorney can develop documents for the hearing and present the evidence in a persuasive manner.  

One word of caution: with CIF, things can change year to year.  Always check on current deadlines, submission requirements, evidence timelines, etc. when pursuing CIF matters, as I have found bylaws, etc. can change with CIF when you least expect 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
Email: help@edlaw4students.com
[please like my office on Facebook, subscribe via twitter and email, and check out my videos on Youtube!]

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.

Friday, January 23, 2015

Does It Really Matter If Students Can't Be Expelled Or Suspended For Willful Defiance Or Disruption?

By Michelle Ball, California Education Attorney for Students since 1995

Recently, the suspension and expulsion codes of California were altered to take "willfully defied" and "disrupted" out of the mix as bases for expulsion (any grade) and for suspension through third grade.  Per the pre-2015 codes, these could be suspendable or expellable offenses.  Does this change really matter?

Since starting as an attorney in the education law field, I have addressed many school expulsions.  Almost all expulsions I have seen have included California Education Code §48900(k) [disruption/defiance] which I call the "catch-all" section. This section has "applied" (per school authorities only) to personnel having to call a kid out of class and talk to the child on a situation they caused, watching a fight, or any "waste" of school staff time.  Although frequently used, and very upsetting to parents looking at this section on an expulsion form, I have rarely seen this section used solely and by itself to expel a student.  Generally, this is a secondary basis for expulsion which accompanies another big offense such as fighting, drugs, alcohol, harassment, bullying or otherwise.  This section does not usually stand on its own for expulsion.  So, removing this code as a basis for expulsion changes almost nothing.

However, for suspension, as this section no longer can be used to suspend students in third grade or lower, the change could be much more meaningful.  This removal will affect the students who may have issues in the classroom with leaving their seats, with blurting out, with arguing briefly, with getting used to authority figures bossing them around.  I have seen kindergartners suspended multiple times with section 48900(k) as a basis.  Multiple suspensions for defiance/disruption of young children is very difficult for them and their parents to process.  And, shouldn't the school know how to handle young kids other than kicking them out of school? This will help many parents of young students who would have been suspended before and now will have to be handled in a nicer way.  

So, even if it may not cut into the expulsion traffic much at school, this change will force schools to try other solutions, such as finding out what the child did not understand that made them bored or disinterested, solving the problem causing them to vacate their seat, giving them a "helper" job so they can move around the class more, providing reward programs, and otherwise-- all of which are usually better than kicking them home to watch TV and to feel like they are "bad."  

The Education Code moves and changes yearly, and sometimes small subtle changes occur.  This is one of those times.  When applied, these changes will help the youngest students who may be just learning how to "make it" in the classroom, so they can be ready for the higher grades and will be able to stick it out when things really get tough!

Best,
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


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

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.


Tuesday, January 13, 2015

How To Consent To Some, But Not All, Of An IEP Document

By Michelle Ball, California Education Attorney for Students since 1995

With special education, the magic document is the Individualized Education Program document, simply called the "IEP."  [The IEP document is different from the IEP meeting, which is also often called the "IEP."]  This is a multi-page document which outlines many important items for the child, including his or her placement and services.  As such, this is a very key item!  Often parents and schools disagree on some services and agree on others, but the IEP is presented as an all or nothing document.  How do parents partially consent to an IEP?  

So many interesting things happen at IEP meetings to parents.  One of these is the far-too-common situation where the IEP coordinator tells the parents that they must sign the IEP that day, period.  The parents, despite disagreement with some services in the IEP, sign under duress, agreeing to things they don't want for their child.  Why should parents have to do this?  What is a parent to do?

First, as a general rule, the IEP document should never be signed at or right after the IEP meeting unless there is absolute certainty that the document is perfect through and through. As parents are not involved in writing the actual IEP document and don't see it until the meeting is over, how can they know the document's contents?  Often the IEP does not contain all items discussed and something important may be missing.  Regardless, once the document is signed, altering it can be difficult. Another IEP meeting may even have to be convened (in 30 days) before a school will add items, even items clearly discussed and agreed to at the meeting.

What should parents do instead of signing at the IEP?  Ask for a copy for review. They can then take it home and ensure the document is accurate.  They may also find errors and omissions, even whole misstatements which need to be addressed. Sometimes parents find that only the school staff statements are in the notes, but no parental comments.  Any significant omissions should be corrected, via the school special education coordinator, prior to signing.

It seems a simple matter to take the IEP home, but I have actually met parents whose schools refused them a copy to take home.  This is a big no-no and is completely inappropriate.  This is a strong arm tactic which breaches the parents' rights.  However, it happens.  Schools may also state that parents cannot have a copy until they sign, to try to get a signature.  Don't fall for it!  A copy should be provided to the parents with or without signature.  There is no harm in not signing the IEP for a few days, or even never signing it.  If the IEP remains unsigned, the old IEP stays in place.

When they bring the IEP home, parents should make a list of what they agree with and what they won't consent to.  They can turn this into an attachment (labelled as such ) to the IEP.  Then, when they review the signature page, parents may check the box near their signature which states something like: "I agree to this IEP except for ____________."  The blank space should include words referencing the attachment, such as "see attached."  

If parents provide a specific attachment with what they don't consent to, the school should not implement those items/changes.  

Parents should understand their rights, know how they will proceed, and plan how to handle any anticipated objections.  This preparation should ensure that parents don't have to consent to items they don't like simply to get the ones they do.

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


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, December 3, 2014

Expulsion Rights: Why Don't They Care About Other Students' Punishments When Punishing My Child?

By Michelle Ball, California Education Attorney for Students since 1995

When a parent suddenly faces the terrible fact that their child is up for expulsion from school, the question always arises: why is my son or daughter being expelled for X action when this other student did much worse and is still at school?  This is a valid question, but is it relevant or helpful?  In most cases, no.

The fact is that schools are obligated by student confidentiality rules not to disclose other students' information.  As such, the fact another student is rumored to have "gotten away" with something for which he could have been expelled usually plays no part in the current child's expulsion proceeding. The only exception would be IF that other student's parents could be convinced to come forward to the current child's expulsion hearing and state what the crime was and the punishment they received, in essence urging the expulsion panel to apply the same punishment or less.  However, the reality is that students who are rumored to have gotten away with something rarely come forward.

Even if the student who got less punishment did come forward to testify to how they did the same thing, there is no guarantee as to just what would happen as a result of that confession.  Even if a parent could get this type of testimony, other factors would come into play, such as the different situations of both students (yours and the one who "got away with it.").  For example, if your son is up for expulsion for causing a severe injury and the other student received merely a suspension for causing a severe injury, questions arise like: what were the injuries caused by both?  How severe was each injury?  Additionally the school would likely poke holes in the different backgrounds of your son and the other student, such as different grade point averages, discipline histories and situations. This is because no two kids are exactly the same, so there are always ways to distinguish them and perhaps to justify increased punishment in one scenario.

The only situation where another student's past crimes could help your child to argue they should receive the same punishment (or less of course) would be if the past student clearly did worse than your child, had a worse record that your child, has had more past discipline than your child, got worse grades than your child AND the other student or his or her parents are willing to come forward to testify about this.  I have not seen this situation come to fruition as ultimately crimes are so different, kids won't talk, the rumors may be false and/or the family does not know how to get a hold of the student who "got away with it."

If there were a pattern of targeting one race over another with harsher punishments, this would be a larger question to be addressed with the Office for Civil Rights and/or in other forums, but it is unlikely a large discrimination case could be proven in the expulsion context.  Schools take great offense as well to allegations that they are somehow discriminating against the student in front of them and levying discrimination allegations needs to be well supported or it could actually worsen the mood of the people deciding the student's fate.  

All in all, I sadly have to tell many parents who come to my office with their son or daughter up for expulsion that it is not relevant that the star football player allegedly sold drugs and got away with it while their child just possessed them and is heading to expulsion.  Ultimately, even if the rumor were true and we could get the star football player to come forward, problems would then develop around the differences in the two students and even the admissibility of the football player's testimony as expulsions are to be based and determined on the student in front of the expulsion panel.

Ultimately, the fact that Zero Tolerance is not supposed to exist (e.g. a student can't just be accused and kicked out without a factual determination and hearing to decide his fate), gives expulsion panels discretion not to expel the football player while still expelling your child based on his or her unique factual situation.  

All parents need to just do their best to try to defeat any expulsion recommendation with the facts available.  If a parent can rally students who received less punishment for the same crime to come forward, they can do so, but ultimately the punishment will be based on what the current student is "proven" to have done. The "proof" used to expel, however, is many times flawed, insubstantial and weak, as it comes in the often difficult world of school expulsions where hearsay comes in and student statements have the power of persuasion regardless of how false or ridiculous they may be.  Parents fighting expulsion fight against a stacked deck and need to stack some strength on their sides from day one with legal counsel and persuasive evidence to show the authorities who hold their child's future in their hands their child did not do it and deserves mercy.

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/ 
Twitter: http://twitter.com/michelleaball 
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!]

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.
 

Tuesday, September 30, 2014

Records Rights In California Community Colleges

By Michelle Ball, California Education Attorney for Students since 1995

Do you or a family member attend one of the many California community colleges?  Have you ever wondered what data the college is gathering on you? Or, have you had "issues" and want to see what is in your records?  Or,maybe you just wish to see what your records state prior to applying to transfer? You are in luck, as thanks to our legislature, obtaining your records from California community colleges is fast, relatively speaking.


Federal law (Family Education Rights and Privacy Act, aka FERPA) provides students the right to review their records within 45 days of a request.  This applies to many colleges, but in California, state law extends students' records rights beyond federal law.  California Education Code §76230 provides students the right to inspect and review their records within 15 working days of a request. This is roughly a 24-27 day difference (or more depending on the college's "working days") and means records review 3-4 weeks faster!  Copies of records may also be requested, but a college may charge per page copying fees.


In my work, 15 working days seems like forever, but a 45 day wait is an eternity, particularly when a student is about to be terminated from a program or has teacher issues.  Heck, some classes could be completed fully in 45 days (in various programs and/or if accelerated), so this law is very helpful.


Here is the exact language of the section:


76230.  Any currently enrolled or former student has a right to access to any and all student records relating to him maintained by community colleges. The editing or withholding of any such records,except as provided for in this chapter, is prohibited.
   Each community college district shall adopt procedures for the granting of requests by students to inspect and review records during regular school hours, provided that access shall be granted no later than 15 working days following the date of the request. Procedures shall include notification of the location of all official student records if not centrally located and the providing of qualified personnel to interpret records where appropriate.

So, if and when you need your records, use the above section to ensure your community college provides records timely.  Not all staff members of every community college are familiar with every law, so it never hurts to remind them of the legal time limit; politely, of course.

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

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, September 8, 2014

Do You Want To Be In Our Group? Eat This: Hazing And School Discipline

By Michelle Ball, California Education Attorney for Students since 1995

Do you remember entering high school and the wild rumors that preceded it? Of groups of high schoolers who would submit all freshman to hazing: humiliating them and torturing them if they were caught alone?  I do.  I was in fear probably through the last half of my eighth grade year, and of course the first week in high school.  Luckily, the rumored "hazing" never happened, but what if it did? Would I have told?  Not likely.  What if I joined some team and was put through strange rituals involving eating disgusting items, having clothing items removed, sitting for long periods tied to a chair or locked in a closet.  What then?  Nothing unless the school found out and then all hell would break loose.

Education Code §48900(q) provides California schools with the authority to suspend or expel students who haze other students.  If a student "engaged in, or attempted to engage in, hazing," discipline may proceed.  

"Hazing" is defined as:

[A] method of initiation or preinitation into a pupil organization or body, whether or not the organization or body is officially recognized by an educational institution, which is likely to cause serious bodily injury or personal degradation or disgrace resulting in physical or mental harm to a former, current, or prospective pupil.

Specifically excluded as hazing, is a student having to participate in "athletic events or school- sanctioned events."  

What is interesting in the definition is hazing can occur in a school or non-school group, meaning there are a broad range of activities covered.  For example, a clique of students who requires members of their group to do degrading things to "prove themselves" and join the group would fall into the hazing category. 

Who hasn't heard of this going on?  Didn't we all grow up daring kids to do things and testing their bravery?  They could be considered hazed.

The problem with hazing offenses, however, is the secrecy of them and the lack of reporting until things get way out of hand.  Initiation rituals for a football team or other school group do occur, but who tells?  Not many kids.  In fact, students are likely scared to death to tell as they may be ostracized for life (high school = life).  When your whole existence is high school, you think your parents know nothing (yes this occurs in high school), and you think you know it all, why tell? It may bring trouble on you and the "popular" kids.  Your life will be over.  Instead, kids sit and take it; take the abuse, taunts, and cruel treatment to "belong." 

Sometimes hazing makes headlines, when a student kills themselves after humiliation, or after a kid is injured and sent to the hospital as a result of hazing. Sometimes this type of conduct gets recategorized from hazing to bullying, sexual battery or assault.  I have seen inappropriate locker room activities end in expulsion, not under "hazing," but rather as sexual offenses.    

Parents need to be aware this occurs and know not only that their kid can be disciplined, suspended or even expelled for "making another boy eat dirt," or "insisting that Joey drink 15 cans of beer," but that hazing could be occurring to their child right under their noses.  It is critical that parents stay alert to this so their child does not end up in the hospital or expelled, as a result of a hazing prank gone bad.

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

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, September 3, 2014

Special Education: What To Consider When Deciding Whether To Take The Plunge

By Michelle Ball, California Education Attorney for Students since 1995

When parents are faced with issues at school involving their child's education, such as a lack of school progress or repeated behavioral problems in the classroom, the school may suggest a special education evaluation.  Is this something that should be pursued?  What are the good and bad things to consider in deciding if you should allow your child to be evaluated for special education?

With anything in life, there are costs (and benefits).  There are costs for taking a day off, costs for driving one way versus another, and costs for all decisions we make, big or small.  Our decisions add up over time, and choosing to pursue special education for a child is a big decision with many ramifications that may affect that child long into adulthood.  

It would be difficult to list all costs and benefits of special education in a single document, but here are just some to consider when deciding whether to open the door:

Costs of Special Education?

-  Students must be labelled with a qualifying handicapping condition to receive services.  Some people just don't want their kid to be labelled with an attention or learning disorder, behavioral condition, or otherwise.
-  Students must submit to various assessments to qualify, including from a school psychologist.
-  Students may be placed in separate classrooms for all or part of their day.
-  Special education does not necessarily bring a child up to and/or keep a child at grade level, so eventual return to a regular class may be very difficult depending on the placement (e.g. outside or inside the general education classroom).
- Skills other than academics may be the focus in certain special education classrooms.
-  Receipt of a high school diploma may not be possible depending on the level at which the student advances and whether they can meet graduation requirements.
-  Labelling kids with "disabilities" may lead to psychotropic drugs being prescribed to them by professionals (e.g. attention medication, anxiety medication, etc.) and/or suggested by school staff.  The choice to medicate for school issues is a BIG decision with long-lasting impacts/side effects.
-  Special education labels may not go away.  A "Learning Disability" label, for example, may stick to that child for life.
-  Students may be placed away from their local/home school, at the site where the special education services are located.
-  Stigma of being in "special education."
-  Risk of putting kids in special education who don't actually need it, but for whom the traditional public school just may be a bad fit and/or who just had cruddy teaching leading to a large deficit.  This is a real possibility and parents may consider other roads than special education, such as home school, intensive tutoring, or otherwise.  I have seen students targeted for special education intensively educated and brought to grade level outside of special education, albeit at the parents' cost.
-  Less lecture-type instruction, such as in a typical group classroom.
-  Students with many different issues and/or functioning levels may be lumped into one classroom and may actually receive less instruction due to the structure of the class.
-  Special education may not be all it is cracked up to be in the end; like public education as a whole, there are issues.
-  A "team" takes over as far as placement, services and what your child will do.  Parents still have a say, but it often becomes a war against the team if the parent disagrees.
-  Getting out of special education can be difficult and may even get a parent forced into a hearing.

Benefits of Special Education?

-  Students may receive a more individualized educational experience and education can be adjusted to the student's level of ability (but watch out for dummying-down of work).
-  Some students may not be able to learn in any other environment and can advance better in a structured and/or special education setting.
-  Special education opens the door to the school district funding many supports, such as one-on-one aides, one-on-one instruction, related services (speech, occupational therapy, behavior support, adaptive physical education, etc.), and even a non-public school placement, depending on the situation.
-  Services may be provided through the age of 21 (there are some qualifications to this, e.g. graduation ends special education rights).
-  Many accommodations may be made in the classroom to help students succeed.
-  College accommodations should be easier to obtain if there is a special education past.
-  Testing accommodations may be made with a special education student, giving them e.g. longer time on standardized tests.
-  Transportation may be provided to any school where a student may be placed.
-  Extra services/specialized classrooms, etc. are free for the parent.
-  Smaller class size opportunities.

There are many more costs and benefits, and each family has to decide for themselves.  Sometimes the decision is obvious and unavoidable (e.g. severely handicapped student).  Other times, parents may be on the fence.  If they pursue special education, what type of special education do they fight for?  Will this harm their child more than help them?  If they pursue special education, will they push for a mainstream environment with supports or a structured classroom?  It is a tough burden to carry.  

To special educate or not special educate is not a small decision and parents should not take the evaluation and labelling of their children lightly.  It may be a lifelong decision which has positive or potentially terrible impacts to the child involved.

Best,
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

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

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.



Tuesday, August 26, 2014

Disgusting School Bathrooms? Missing Toilet Paper Or Soap? Contact The Office Of Public School Construction

By Michelle Ball, California Education Attorney for Students since 1995

Have you ever walked into the school bathrooms your children use at school?  As often schools have separate staff/adult and student bathrooms (a wise choice), probably not.  The condition of your kids' bathrooms may therefore be a big mystery!  Do you know if the school bathrooms have adequate toilet paper, soap and supplies?  Is there even a working soap dispenser?  Are the toilets working, leaking, or barred from use?  Parents may want to ask their kids just what the condition of the school bathrooms is, so any issues can be addressed and Junior can go to the bathroom in a clean environment.

(a) Every public and private school maintaining any combination of classes from 
kindergarten to grade 12, inclusive, shall comply with all of the following: 
 (1) Every restroom shall at all times be maintained and cleaned regularly, fully operational and stocked at all times with toilet paper, soap, and paper towels or functional hand dryers. 
 (2) The school shall keep all restrooms open during school hours when pupils are not in classes, and shall keep a sufficient number of restrooms open during school hours when pupils are in classes. 
 (b) Notwithstanding subdivision (a), a school may temporarily close any restroom as necessary for pupil safety or as necessary to repair the facility.

If issues exist, a parent may file a complaint with the Office of Public School Construction- see the form here.

Just what might warrant a complaint?  Here are some examples, taken from the form:

-  Toilet damaged or missing
-  Toilet leaking or clogged 
-  Bathroom sink damaged or missing
-  Clogged floor drains or sink drains
-  Faucet/pipes damaged or missing
-  Electric hand dryer damaged or missing
-  Stall doors or locks missing or inoperable
-  Toilet paper/paper towel dispensers missing or inoperable
-  Soap dispensers consistently empty, missing or inoperable
-  Paper towels or toilet paper consistently missing or unusable
-  Floors, walls, or ceilings consistently unclean
-  Trash not emptied consistently
-  Toilets/urinals consistently unclean/unusable
-  Restroom closed for extended period
-  Other bathroom issues

If any of the above issues exist, a complaint should be lodged so the situation can be addressed.  With the worsening condition of our school grounds lately, I am sure some bathroom fixes are needed.  Don't let your kids have problems in their bathrooms, which should be the least of their worries when they are running to a math test.

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

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.



Tuesday, July 29, 2014

Appealing A School Expulsion: When Does Filing Make Sense?

By Michelle Ball, California Education Attorney for Students since 1995

Imagine life is rosy, your son is a 4.0 gpa student, wants to go to college, has a job, a girlfriend and is participating in extracurricular activities.  Then, one sunny afternoon, the phone rings and it is your son's Vice Principal, Mr. Jones, who says that your son is up for expulsion for having sold drugs to some kids on campus. Your heart sinks and your world spins.  Is this a joke?  Are you being punked?  No. This is real.

There is no way your son did this.  The school has to be making it up.  He is a great kid with no discipline issues, and there is nothing in his room, on his computer or on his phone.  You are confident that any school panel, despite the witness statements and evidence against your son (all lies!) will believe you.  You decide you don't need help with the expulsion hearing and proceed to hearing alone.  At the hearing, your son explains that he did not do it and has no prior discipline.  The witnesses stating they were sold drugs are not credible (in your opinion).  You are confident the panel of school district employees will know your son is innocent!

Later, your world collapses when you hear the hearing panel's and later the Board of Education's decisions affirming that your son has been EXPELLED FOR 1 YEAR FOR DRUG SALES and will not participate in any senior activities.  He will attend a CONTINUATION SCHOOL!? and will not be able to graduate with his class.  He will have a permanent notation of expulsion in his records.  His future is ruined.

What did you do wrong?  Can you go back?  Can you get a second chance? What do you do next?

Unfortunately parents cannot go back and get a new hearing or explain again. And, they have a quick decision to make on whether to appeal the decision or not to the local County Board of Education.  County education boards exist in every area in California.  If the parent lives in Sacramento, they would consult the Sacramento County Office of Education.  If in Roseville or Auburn, one would consult the Placer County Office of Education, etc. 

An expulsion appeal MUST BE FILED IN 30 DAYS (Cal Education Code §48919) , and must be evaluated prior to filing for chances of success, as the County Boards of Education will only overturn an expulsion in very limited circumstances, per Cal Education Code §48922, including:

1)  The governing board of the school district acted without or in excess of its jurisdiction, or
2)  There was an unfair hearing, or
3)  There was a prejudicial abuse of discretion in the hearing, or
4)  There was evidence which was improperly excluded or could not have been produced, despite reasonable diligence.

What does this mean?  These are mainly fairness and procedural arguments. Education Code §48922 explains a hearing may be "in excess of jurisdiction" if the hearing was not convened timely, the act(s) alleged were not expellable, or the acts were not somehow school related.  An "abuse of discretion" may exist when the hearing findings were unsupported and/or the school did not meet their procedural requirements.  These are very complex and narrow arguments.

Although many expulsions can't fit into these narrow appeal arguments, many are very appealable.  For example, I was recently amazed to meet a parent who was provided a mere 4 days notice of an expulsion hearing.  We filed the appeal and all was reversed prior to the appeal hearing.  The student will return to school in the fall and all expulsion records have been expunged.  The parent had NO IDEA appeal was possible or winnable prior to seeking legal counsel.

Here are some fact situations where an expulsion may be worth appealing (keep in mind whether to pursue an appeal is very fact dependent):

1)  The expulsion hearing was not convened within 30 schooldays and no time waiver was signed by the parent.
2)  Notice of the expulsion hearing was not mailed out 10 days in advance of hearing and no waiver was signed.
3)  Only hearsay evidence was presented at the hearing.  This could occur if the accused student has not confessed or testified and there were no direct witnesses who testified.
4)  The superintendent and/or district representative stayed in the room while the hearing panel or Board deliberated and the parent/student were excluded.
5)  The parents were denied their right to present their defense.
6)  The charges were not supported by the evidence presented in the case.
7)  The family was not advised of their hearing rights as required by the Education Code (e.g. right to have legal counsel, right to question and cross-examine witnesses, etc.)
8)  Other reasons?

In every expulsion matter, appeal support needs to be specifically evaluated prior to proceeding.  Sometimes the school has done everything right procedurally and appeal is pointless.  Other times, a parent may be shocked to find out how many rights were violated.

This is why it is very important to consult with an attorney if you don't like the expulsion hearing result.  Better yet, consult with an attorney BEFORE the expulsion hearing itself.   It is often much better to resolve things early in the expulsion process than after the hearing has already passed.

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

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

Friday, June 13, 2014

Teacher Tenure: What Is The Big Deal? Incredible California Case May Change The Future Of California Education For The Better

By Michelle Ball, California Education Attorney for Students since 1995

This week, Judge Rolf M. Treu, Superior Court of California,  in Vergara v. State of California (2014) determined that our teacher tenure, seniority and dismissal laws (California Education Code 44921(b), 44934, 44938(b)(1) 44944, and 44955 ) are unconstitutional as they breach California students' rights to a quality education.  You may be saying- ho hum who cares, so I will attempt to explain the very BIG DEAL this case is.  

First, I don't know about you, but since birth I have heard that teachers are measly low paid workers who barely scrape by.  This urban myth is false.  Teachers work approximately 9 months a year, yet get paid very favorable salaries.  Per the California Department of Education "Average Salaries & Expenditures Percentage" publication, teacher salaries in 2011-2012 ranged from: $38,390-$42,865 for a beginning teacher fresh out of college.  For a longer term teacher, salaries range from $70,797-$89,290.  When you factor in that teachers work only an average of 9 months a year, teachers' real pay becomes evident.  Taking the amounts above and dividing them by 9 months, the "real" annual wage may be factored:

Beginning teacher wage/nine months = $4265.55-$4762.77/month 
Yearly (12 months) this is: $51,186.60- $57,153.24/year actual wages

Higher level teacher wage/nine months = $7866.33-$9921.11/month 
Yearly (12 months) this is: $94,395.96- $119,053.33/year actual wages

Now, I know some will scoff and say "I work 9.5 months a year," or "Your math is all wrong."  Nine months is a "best guess" factoring in winter break (2 weeks) spring break (1 week), President's Day break (1 week), summer break (2 months+), and all other school holidays.  If teachers get these off, they work about 3/4 of the year or 9 months while the rest of us trudge along roughly for just under 11.5 months (presuming 2 weeks off+).  As far as the hours they put in, I don't see that they squeeze 11.5 months worth of hours into 9 months time.  Rather, I see teachers leave meetings early as they are "not contracted for the meeting time."  If a teacher is told they have to stay, they seem to be paid extra, above and beyond their regular salary.

Additionally, teachers reportedly receive some of the best benefits around for health, retirement and otherwise.  Kudos to their unions, which are some of the most powerful in the nation.  

With the cherries on top of teacher tenure (you get a permanent job after two years of work), first in last out laws (seniority), and the difficult dismissal procedures (heightened/much more complex/expensive than "normal" government employees), once a teacher is "in" a district, they are IN, maybe for life, irregardless of work performance.

Now, if they were all doing a great job, tenure would not be an issue, but California schools are some of the worst in the United States, and teachers are at the heart of the mess our schools have become.  As Judge Treu states:  

All sides ... agree that competent teachers are a critical, if not the most important, component of success of a child's in-school educational experience.  All sides also agree that grossly ineffective teachers substantially undermine the ability of that child to succeed in school. (page 7)

In Vergara  (page 8), Judge Treu reports that there are estimated to be 2,750-8,250 "grossly ineffective" teachers in California schools, thrust for the most part on low income areas and minority students (page 15).  With the seniority rules and special termination procedures for teachers, however, the removal process is described as taking from 2-10 years at a cost potentially up to $450,000+ taxpayer dollars (page 11).  Most districts forgo the dismissal process as a result. This means the bad teachers stay and students pay the price.

Time and time again I meet with parents who get stuck with one of these grossly incompetent teachers.  The teacher is checked out, can't teach well, or berates and criticizes the kids incessantly.  But, despite years of issues, complaints, etc. the school district can't get rid of this teacher because they are "tenured."  Now, the 400th discarded kid ends up in this teacher's class as the school has no other choice and it is hellish.  The child's parents are at their wits end and ultimately, the child wastes their time, learns nothing, and you and I (the taxpayers) are paying for it.  Vergara cites an almost 10 month loss of education when a student is placed with a grossly ineffective teacher (page 8).

The big deal here is that teachers basically get a permanent job no matter how well or how poorly they teach.  If you have ever seen the fabulous documentary "Waiting for Superman," you will remember the scene with the room full of teachers, removed from the classroom, yet who could not be fired.  Rather than subject students to them, the school district paid them their full salary while they sat in a room and twiddled their thumbs day after day.  At taxpayers expense.  It was cheaper to keep them there than try to fire them. Why should schools have to do this?  Heightened due process when firing teachers (e.g. just because they are teachers) should not apply.

I am very happy about the decision this week to end teacher tenure, seniority and heightened termination laws, while also being very nervous the decision will be overturned on appeal.  I hope Vergara stands, as how California goes, so goes the rest of the United States.  It's about time we took A HUGE HURDLE out of our kids' way so they can have a chance at their education.  I applaud Judge Treu for turning teachers into something they never were: employees who can be terminated if they do a bad job just like the rest of us.  Now parent personnel complaints may just be acted upon properly, for the benefit of the people the school system was set up to help: our kids.

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



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