Tuesday, November 28, 2017

Parents Have The Right To Review Or Obtain Copies Of Their Child's School Records

By Michelle Ball, California Education Attorney for Students since 1995

School records created by a high school, elementary school, private school, or school district, can loom as an unknown for many parents.  Parents often don't even think about what may be in these files.  One way to debunk the mystery of what may be being documented on your child is to make a written request for the education records to be released.

Per California Education Code section 49069, a parent has an absolute right to access their child's records.  This right transfers to a student when they turn 18.

Section 49069 states as follows:

Parents of currently enrolled or former pupils have an absolute right to access to any and all pupil records related to their children that are maintained by school districts or private schools.  The editing or withholding of any of those records, except as provided for in this chapter, is prohibited.

What this means is that parents of students of all school levels may review, inspect, and request copies of records concerning their children which the school maintains.  The definition of "maintains" is a term of art, but it (very) roughly means documents the school must or does keep, which are not personal notes [see also 34 Code of Federal Regulations section 99.3].  Access or copies of the records must be provided within 5 business days of any valid request.

This code also directs districts to develop procedures for parents to obtain student records which  should be outlined in school board policies. 

Schools can charge a per page copy fee for any records provided, but cannot charge for the time of the staff gathering the records.  

Parents should request their child's records in writing periodically, quoting the relevant board policy or Education Code §49069.  

You never know what may be in your child's records. Most families will not find anything untoward.  Sadly, however, I have seen some parents shocked at just what was contained in their child's files.  


Best,

Michelle Ball
Education Law Attorney 

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

Originally published 6/8/11, updated 11/28/17

Tuesday, September 19, 2017

When is School Expulsion Mandatory in California Public Schools?

By Michelle Ball, California Education Attorney for Students since 1995

School expulsion is NOT something any parent wants their child to endure.  To be removed entirely from a school district to have to attend a "bad" school is not a fun process.  A permanent mark is placed on the student's record which may come up later in life, including when completing college applications.  As such, it is good to know WHEN an expulsion is MANDATORY for a school district. In other words, when does a school district have no choice but to recommend expulsion and thereafter expel a student?

In California there are only five categories where a public school student MUST be expelled.  Please see Education Code §48915(c) for more specifics:

1)  Possessing, selling or furnishing a firearm.
2)  Brandishing a knife at another person.
3)  Unlawfully selling a controlled substance.
4)  Committing or attempting to commit a sexual assault or committing a sexual battery.
5)  Possession of an explosive.

These are the Big 5 offenses.  IF a district can prove at the expulsion hearing (to a panel of school district employees) that one of these occurred, they are legally obligated to expel the student.  

If a student is expelled under §48915(c), the only attendance option (unless negotiated otherwise) is to attend a county community school, juvenile court school or community day school (see §48915.2), which are environments most parents would prefer to avoid

How long an expulsion under §48915(c) will continue will depend on the hearing outcome, and/or the negotiations prior to hearing.  The legal maximum an expulsion under §48915(c) may continue is a full calendar year (unless there is a breach of the rehabilitation plan during expulsion which will extend the expulsion). The minimum is not delineated in code, but would likely be 1 semester and/or what a parent negotiates. 

It IS possible to shorten the one year expulsion mandate and negotiate and/or receive a lesser time period, or even a different type of expulsion (e.g. suspended expulsion rather than full expulsion), but whether this is possible will depend on the student, the district and the school board.  Parents will best be served by thoroughly understanding the ramifications of any expulsion and all potential outcomes, and perhaps seeing if they can negotiate a more positive outcome, prior to moving to hearing.
Best,

Michelle Ball
Education Law Attorney 

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

originally published 1/7/11, updated 9/19/17


Monday, August 14, 2017

Appealing A Bad OCR Decision On Alleged School Discrimination

By Michelle Ball, California Education Attorney for Students since 1995

Have you filed a complaint alleging discrimination or improper retaliation with the United States Department of Education (USDOE) and their Office for Civil Rights (OCR) and received a negative ruling?  Did they say the clear wrongful acts (to you) were not really bad or not really discriminatory?  If so, you may have an appeal right if you act fast.

Per the USDOE website, within 60 days of the date of the letter issued by OCR, an appeal must be filed with the "Director of the Enforcement Office (Office Director)."  

The bases for appeal listed are:

AT LEAST ONE OF THE FOLLOWING
1)  Factual information was incomplete, and/or
2)  Factual analysis was not correct, and/or
3)  Wrong legal standard was applied 
AND
a)  The outcome would be changed due to #1-3 above.

The appeal must be filed timely, and if it isn't, the parent/student/claimant, must show a good reason the appeal was filed late, which is defined as:

"1.  the complainant was unable to submit the appeal within the 60-day timeframe because of illness or other incapacitating circumstances and the appeal was filed within 30 days after the period of illness or incapacitation ended; or
2  unique circumstances generated by agency action have adversely affected the complainant." (per USDOE/OCR)

The decision will be forwarded to the parent/student/claimant in writing after review.

So, if you are piping mad about an OCR ruling against you or your child, appeal of that decision may be an option, but must be pursued timely and with adequate proof.

Best,

Michelle Ball
Education Law Attorney 

LAW OFFICE OF MICHELLE BALL 
717 K Street, Suite 228 
Sacramento, CA 95814 
Phone: 916-444-9064 
Email:help@edlaw4students.com 
Fax: 916-444-1209
[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, July 13, 2017

Schools Have An Obligation To Provide Translated Documents

By Michelle Ball, California Education Attorney for Students since 1995

California is a diverse state, with many different cultures, nationalities and languages being spoken.  Residents' children, regardless of language spoken by students or their parents, have the right to attend California public schools.  Still, while non-English speaking students may attend classes (e.g. Spanish/English transition classes) which help them transition to English, their parents may remain non-English speakers.  How do they stay informed about their child's school progress, development, and any issues which might arise?

Education Code §48985  mandates that documents be translated for non-English speaking parents if pupils speak a language other than English and total more than 15% of a school's population:

"(a) If 15 percent or more of the pupils enrolled in a public school that provides instruction in kindergarten or any of grades 1 to 12, inclusive, speak a single primary language other than English, as determined from the census data submitted to the department pursuant to Section 52164 in the preceding year, all notices, reports, statements, or records sent to the parent or guardian of any such pupil by the school or school district shall, in addition to being written in English, be written in the primary language, and may be responded to either in English or the primary language."

If pupils speaking a language other than English total more than 15% of a school's population, documents must be sent to their family in English and their native language (e.g. Spanish, Cantonese, Arabic, Hmong, Russian or other language depending on the population of the school).  Such documents should include report cards, testing notices, policies, enrollment paperwork, discipline notices and many other communications to the students' families.

Education Code §51101.1 further addresses the rights of parents to translated documents

"(a) A parent or guardian’s lack of English fluency does not preclude a parent or guardian from exercising the rights guaranteed under this chapter. A school district shall take all reasonable steps to ensure that all parents and guardians of pupils who speak a language other than English are properly notified in English and in their home language, pursuant to Section 48985, of the rights and opportunities available to them pursuant to this section.
(b) Parents and guardians of English learners are entitled to participate in the education of their children pursuant to Section 51101 and as follows
...
(2) To be given any required written notification, under any applicable law, in English and the pupil’s home language pursuant to Section 48985."

I have seen non-English speaking parents' rights breached via school district failure to provide translated documents.  This has included improperly translated expulsion hearing documents, suspension forms, report cards, and other legally mandated documents.  This prevents the non-English speaking parents from being able to read and understand the documents they receive and lessens their ability to participate in their children's education.

If you know someone who is not an English speaker, be sure they know their rights to translated educational documents pursuant to state law.  We all benefit if parents are engaged in their kids' education.


Best,

Michelle Ball
Education Law Attorney 

LAW OFFICE OF MICHELLE BALL 
717 K Street, Suite 228 
Sacramento, CA 95814 
Phone: 916-444-9064 
Email:help@edlaw4students.com 
Fax: 916-444-1209
[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, May 3, 2017

Cats and Dogs Released From Public Colleges: The Obligation To Allow Adoption After The Experiment Is Over

By Michelle Ball, California Education Attorney for Students since 1995

Did you know that cats and dogs are used as test subjects in colleges and universities?  People often think of rats, mice and primates as animals used in research, but typical "pets" are sadly also used (see graphic article on cat experimentation in colleges).  What happens to the animals if they are still well AFTER a public college is through with them?  Are they euthanized or do they have to be placed in new homes?  It depends on their condition.

Per California Education Code §66017.7, animals which are "suitable for adoption" after the school is through with them, do not have to be put to death.  Rather, they are to be placed up for adoption by the college or given to an adoption agency to place.

This section states in part:

"(a) A public postsecondary educational institution or independent institution of higher education, or employee or student thereof, that confines dogs or cats for the purposes set forth in Section 1650 of the Health and Safety Code, if the institution assesses the health of an animal and determines, after the completion of any testing or research, that the animal is suitable for adoption, the animal’s destruction is not required, and the animal is no longer needed, and if the institution’s existing procedures for adopting the animal do not result in an adoption, shall offer the dogs or cats to an animal adoption organization or animal rescue organization for adoption prior to euthanizing those animals. A public postsecondary educational institution or independent institution of higher education that is required to offer dogs or cats to an animal adoption organization or animal rescue organization under this section may enter into an agreement with an animal adoption organization or animal rescue organization for the implementation of this section."

This does not prevent experimentation, but forces adoption after the tests are through and prevents the unnecessary killing of healthy cats and dogs.  If a public college or university is done with a dog or cat, and there is no reason the pet MUST be killed, the school is required to offer the cat or dog to an adoption agency to place if the college cannot find the animal a new home.

All creatures have an urge to survive and this law at least, is something.  Maybe these animals can find a home where tummy rubs, not needles, are used to stimulate them.

Later in the above code, it is indicated that such requirements do not apply to animals listed in Food and Agriculture Code 17006 which references animals that are ill and may not be healed or newborn animals who were "impounded without their mothers." 

I have gotten all my pets from local adoption groups and love every one of them.  I don't think any of my animals were experimented on.  Hopefully college-discarded cats and dogs will find loving homes when released from our local universities, maybe even with you.


Best,

Michelle Ball
Education Law Attorney 

LAW OFFICE OF MICHELLE BALL 
717 K Street, Suite 228 
Sacramento, CA 95814 
Phone: 916-444-9064 
Email:help@edlaw4students.com 
Fax: 916-444-1209
[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 17, 2017

Cyber Sexual Bullying: One More Reason To Boot Your Kids Out Of School

By Michelle Ball, California Education Attorney for Students since 1995
  
Cyber sexual bullying is now a suspendable or expellable offense in California schools.  Bullying already is an expellable offense, but apparently the legislature did not think "bullying" alone was broad enough.  As such, the legislature chose to add a new offense to the ever growing list of things a student may do wrong.  Now students may not bully and also use or reference sexually explicit electronic communications, which are covered by this new subcategory of bullying.

California Education Code §48900(r)(2)(iii) states:

"...“cyber sexual bullying” means the dissemination of, or the solicitation or incitement to disseminate, a photograph or other visual recording by a pupil to another pupil or to school personnel by means of an electronic act that has or can be reasonably predicted to have one or more of the effects described in [the Bullying section]. A photograph or other visual recording, as described above, shall include the depiction of a nude, semi-nude, or sexually explicit photograph or other visual recording of a minor where the minor is identifiable from the photograph, visual recording, or other electronic act.
(II) For purposes of this clause, “cyber sexual bullying” does not include a depiction, portrayal, or image that has any serious literary, artistic, educational, political, or scientific value or that involves athletic events or school-sanctioned activities." [bracketed material added]

An act of cyber sexual bullying must be "bullying" and also sexual in nature as defined above.  

It is interesting that "incitement to disseminate" is an offense covered under this subsection.  This could mean a student who did not send or take an improper picture, but rather only "incited" someone to send or take it, could also potentially be guilty of an offense.  This sexual bullying can involve "sexting," where nude photographs of students are shared, presumably by others who are not authorized to share them.  

When Governor Brown signed this into law, a press release explained:

"Sexual bullying is a form of bullying commonly facing teenagers.  It is a behavior that can include harassing an individual or others through comments and actions that are sexual in nature. Furthermore, sexual bullying can occur in person or online.  The act of sexting, where sexual, nude or semi-nude images are exchanged electronically, has become a recent occurrence in the lives of young people, and can be a major form of sexual bullying, or cyber sexual bullying.  Approximately 20 percent of teenage boys and girls have sent a sext message, according to the American Academy of Pediatrics." 

In recent years, the long arm of the schools frequently attempts to reach acts outside school grounds, activities and hours, particularly with bullying.  It used to be that acts on the weekend stayed on the weekend.  However, if matters come into the school and cause a bullying environment, even if not intended to do so, it is possible the schools may try to punish the offending student(s) regardless of where the offending act(s) occurred.  Students beware.

Best,

Michelle Ball
Education Law Attorney 

LAW OFFICE OF MICHELLE BALL 
717 K Street, Suite 228 
Sacramento, CA 95814 
Phone: 916-444-9064 
Email:help@edlaw4students.com 
Fax: 916-444-1209
[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, October 13, 2016

Do You Have To File A Claim Form Each Time You Want To Sue A School? Maybe Yes Maybe No: Here Are Some Exceptions

By Michelle Ball, California Education Attorney for Students since 1995

Filing a required claim form with a government agency, such as a school or school district, prior to moving to court can be a daunting and confusing task.  I have previously written about the pre-court filing requirement for certain claims against a school or school district (herehere and here) but wanted to add a list of some exclusions (may not be an exhaustive list) for parents and students. 

I don't need to reiterate my earlier posts on filing and late filing, but one code section is relevant when evaluating whether a pre-court filing may be required or not.  California Government Code section 905 states:

"There shall be presented in accordance with Chapter 1 (commencing with Section 900) and Chapter 2 (commencing with Section 910) all claims for money or damages against local public entities except any of the following:

(a) Claims under the Revenue and Taxation Code or other statute prescribing procedures for the refund, rebate, exemption, cancellation, amendment, modification, or adjustment of any tax, assessment, fee, or charge or any portion thereof, or of any penalties, costs, or charges related thereto.

(b) Claims in connection with which the filing of a notice of lien, statement of claim, or stop notice is required under any law relating to liens of mechanics, laborers, or materialmen.

(c) Claims by public employees for fees, salaries, wages, mileage, or other expenses and allowances.

(d) Claims for which the workers’ compensation authorized by Division 4 (commencing with Section 3200) of the Labor Code is the exclusive remedy.

(e) Applications or claims for any form of public assistance under the Welfare and Institutions Code or other provisions of law relating to public assistance programs, and claims for goods, services, provisions, or other assistance rendered for or on behalf of any recipient of any form of public assistance.

(f) Applications or claims for money or benefits under any public retirement or pension system.

(g) Claims for principal or interest upon any bonds, notes, warrants, or other evidences of indebtedness.

(h) Claims that relate to a special assessment constituting a specific lien against the property assessed and that are payable from the proceeds of the assessment, by offset of a claim for damages against it or by delivery of any warrant or bonds representing it.

(i) Claims by the state or by a state department or agency or by another local public entity or by a judicial branch entity.

(j) Claims arising under any provision of the Unemployment Insurance Code, including, but not limited to, claims for money or benefits, or for refunds or credits of employer or worker contributions, penalties, or interest, or for refunds to workers of deductions from wages in excess of the amount prescribed.

(k) Claims for the recovery of penalties or forfeitures made pursuant to Article 1 (commencing with Section 1720) of Chapter 1 of Part 7 of Division 2 of the Labor Code.

(l) Claims governed by the Pedestrian Mall Law of 1960 (Part 1 (commencing with Section 11000) of Division 13 of the Streets and Highways Code).

(m) Claims made pursuant to Section 340.1 of the Code of Civil Procedure for the recovery of damages suffered as a result of childhood sexual abuse. This subdivision shall apply only to claims arising out of conduct occurring on or after January 1, 2009.

(n) Claims made pursuant to Section 701.820 of the Code of Civil Procedure for the recovery of money pursuant to Section 26680.

(o) Claims made pursuant to Section 49013 of the Education Code for reimbursement of pupil fees for participation in educational activities."

One of the sections referenced above includes claims pursuant to California Code of Civil Procedure §340.1, which relates to childhood sexual abuse.  As we all know, childhood sexual abuse all to frequently occurs in schools or involves school employees. 

Another section referenced is a claim for fees wrongly paid under California Education Code sections 49010-49013, such as a claim for return of fees improperly charged for books, materials, extracurricular activities and otherwise.

Parents and students need to be aware of applicable filing time limits so they can competently pursue their school claims should a dispute, sexual abuse claim, or other situation arise.  

Best,

Michelle Ball
Education Law Attorney 

LAW OFFICE OF MICHELLE BALL 
717 K Street, Suite 228 
Sacramento, CA 95814 
Phone: 916-444-9064 
Email:help@edlaw4students.com 
Fax: 916-444-1209
[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, October 6, 2016

Student On Student Vaginal Ultrasounds Found To Be Search Under Fourth Amendment

By Michelle Ball, California Education Attorney for Students since 1995

Earlier this week, the Eleventh Circuit Court of Appeals found that a transvaginal ultrasound requested of college students at Valencia College in Florida was a search for Fourth Amendment purposes.  

California is within the Ninth Circuit Court of Appeals, but often sister jurisdiction decisions impact and influence decisions here.  The decision is noteworthy for its facts, which college students may want to be aware of, and for the definitive ruling that this conduct did involve a search for purposes of Fourth Amendment analysis.

The basics are that students who entered the state run Valencia College Sonography program were allegedly asked to "volunteer" for transvaginal ultrasounds to be performed on them by other students in the program (male and female).  Three students refused.  Two were allegedly thereafter badgered into allowing this invasive procedure to be done on them.  The third student did not agree and was as a result excluded from the ultrasound procedures, given "two failing grades and yelled at... for an hour until she had a panic attack," according to the decision in Doe v. Valencia College Board of Trustees (11th Circuit, October 4, 2016).  Per Judge William Pryor, these transvaginal ultrasounds involve insertion of a sonogram device into the student's vagina and can be painful and embarrassing.

The students filed suit in federal court alleging breach of their Fourth Amendment right to be free from unreasonable searches, breach of their First Amendment speech rights and other bases.  They requested damages, injunctive relief, and attorney fees and costs.  

The lower court (District Court) dismissed the students' complaint alleging that their communications on the procedure to the college were "school-sponsored" speech and that there was no search.  An appeal of this dismissal was made to the Eleventh Circuit, where the court, taking the students' assertions as fact for the proceeding, found that the speech was not "school-sponsored" and that the insertion of the objects into a student's vaginal area was indeed a search under the Fourth Amendment.

The matter now returns to the District Court for proceedings and presumably a trial.

This case shows the extent to which some colleges may breach students' rights: by forcefully leveraging the power of a potential degree to get students to submit to invasive procedures.  More shocking for most may be the fact of how the college treated the student who refused this intrusive search of her body- with reported degradation and failing grades.  

Just another day in the life of a college student at the mercy of government run educational institutions.

Best,
Michelle Ball
Education Law Attorney 

LAW OFFICE OF MICHELLE BALL 
717 K Street, Suite 228 
Sacramento, CA 95814 
Phone: 916-444-9064 
Email:help@edlaw4students.com 
Fax: 916-444-1209
[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, September 16, 2016

Athletic Motivation In Sports Transfers- Avoiding The Allegation

By Michelle Ball, California Education Attorney for Students since 1995

High school sports laws in California are the bane of many parents, and students, existence.  They are restrictive and can be confusing for one and all.  One of the most common issues for students involves the transfer process, particularly when an overzealous parent calls up the new school prior to the transfer or an old coach is associated with the new school.  This may be found to be "athletic motivation" and can result in the student not being able to participate in sports for one calendar year.

No student who transfers schools (whether they move or not) may participate in sports at their new school until they are granted permission by the California Interscholastic Federation (CIF), the ruling body over California high school sports.  CIF writes bylaws which are updated annually (usually during the summer) which cover most sports issues, including the ability of students to participate.  If certain situations are found, such as athletic motivation, students will be restricted.  

What is "athletic motivation" per CIF?  Under CIF Bylaw 207C, what encompasses athletic motivation may include the following:

1)  Relocation to a school within one year of a former high school coach moving to that school.
2)  Relocation to a school when the student participated in a non-school athletic team (e.g. a club team) during the last 24 months, which is associated with the new school.
3)  Relocation to a school where the coach of a student's community team works or is associated.
4)  Relocation to a school where a majority of students from the transferring student's club or other community team attend.
5)  Relocation to a school with which the student or their relatives have had pre-transfer contact, including but not limited to attendance at orientation or informational programs. 
6)  Relocation to a school about which the student or a relative has obtained pre-enrollment information from a third party, even via a friend who attends the school, a school club, or an intermediary.  
7)  Attendance at events of the transferring student (prior to transfer) by anyone representing the new school, e.g. a coach of the new school attends the student's football practice at the old school prior to transfer.

Note: This may not be an exhaustive list.

Number 5 can even encompass a situation where a student has a friend attending the new school and talks to that friend about their school, then moves there.  The transferring student may be found to have athletic motivation due to the pre-enrollment contact.  

Here is what the CIF Bylaw 207C.(1) defines as pre-enrollment contact:

"Pre-enrollment contact may include, but is not limited to: any communication of any kind, directly or indirectly, with the student, parent(s)/guardian(s)/caregiver, relatives, or friends of the student about the athletic programs at a school; orientation/information programs, shadowing programs; attendance at outside athletic or similar events by anyone associated with the school to observe the student; participation by the student in programs supervised by the school or its associates before enrollment in school..." [2016-17 CIF Constitution and Bylaws]

If a student is found to be athletically motivated by CIF, they can try to overturn that decision by attacking the basis for CIF's decision on appeal or by proving that:

"The [pre-enrollment] communication was completely unrelated to any aspect [of the new school] AND 
Was of a type that, from the objective point of view of a reasonable person disinterested in the win/loss records of [the new school] does not have an effect upon the integrity of interscholastic athletics at [the old or new school]." [CIF Bylaw 207C(9)].

All pre-enrollment contact must be disclosed to CIF.

If you sit scratching your head on how overbroad this is, you are not alone.  From reading the bylaws, it seems that almost any contact with a new school prior to enrollment, could support athletic motivation.  And, if a student's second cousin, unbeknownst to the student, calls the school about football, this could be athletic motivation, and if a man who is married to a Board member talks to the student this could also be athletic motivation-- and on and on... This is because the bylaw is written to encompass way to many situations and is untenable for most families to manage in the real world.

All I can say is: "Welcome to high school sports!" [big smile, goofy baseball cap on, and floppy foam finger waving cheerfully!]  

So, to try to avoid the athletically motivated allegation (hopefully), a family must ensure they avoid these situations.  Otherwise, their child may be sitting on the bench at their new school for a full year unable to participate in sports.*


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

*Please note this entry is based on the CIF rules from 2016-2017.

Tuesday, August 2, 2016

Preventing Problems In Special Education Service Delivery When Changing School Districts

By Michelle Ball, California Education Attorney for Students since 1995

Moving your home is never easy, but some stuff should be smooth: calling to set up utilities, finding a local grocery store, enrollment in school.  These things should not be big deals, right?  Sure.  But, what if your child is in special education?  How will their move go?  Things can get sticky or services may stop altogether.  Parents need to take action prior to relocating with a special needs student to try to avert disaster.

Technically and legally, nothing should change for your child at their new school.  If a student had a full time aide while being mainstreamed, they should get a full time aide and be mainstreamed at their new school.  If they had Resource English class, they should have it again, at least for a little while.  Sounds simple.

The California Education Code section which addresses moves, 56043(m)(1) states:

 If an individual with exceptional needs transfers from district to district within the state, the following are applicable...

(1) If the child has an individualized education program and transfers into a district from a district not operating programs under the same local plan in which he or she was last enrolled in a special education program within the same academic year, the local educational agency shall provide the pupil with a free appropriate public education, including services comparable to those described in the previously approved individualized education program, in consultation with the parents or guardians, for a period not to exceed 30 days, by which time the local educational agency shall adopt the previously approved individualized education program or shall develop, adopt, and implement a new individualized education program that is consistent with federal and state law. [emphasis added]

This applies to students changing districts in-state, leaving their old "SELPA" (Special Education Local Plan Area).  SELPAs may cover an entire county, one district, or a region.  Students moving in California and out of their prior SELPA should receive equivalent IEP services upon entrance to a new school district. Within 30 days of entrance into the new district, an IEP meeting should be held and the old IEP adopted or a new IEP developed.  As usual, if parents do not agree to suggested changes to the prior IEP, they may reject some or all of them.

Per state law, if a student moves within the state and within the same SELPA, the new District must adopt the old IEP and provide services unless the parent and new IEP team agree to develop a new IEP (CA Ed Code section 56043(m)(2)).  In other words, the IEP continues and no meeting must be set.

Federal law basically states that a student changing districts during the same school year within the same state shall receive comparable services at the new location (20 US Code 1414(d)(2)(C)(i)(I)).

If a student comes from outside of California, comparable services must be provided, but a new IEP cannot be developed until an assessment is completed (CA Ed Code section 56043(m)(3)) unless the new district determines a new assessment is not "necessary." (20 US Code 1414(d)(2)(C)(i)(II)CA Ed Code section 56325(a)(3)).

The only wrinkle in all of this is that the codes mention moves within the same academic year.  No mention is made of a move during the summer, but arguably, the same things will apply whether a change is mid-year or during the summer. IEPs don't just evaporate depending on what month one moves.

An interested parent might now think: "This sounds great, as all schools will know and apply the law to all students and ensure my child gets services from day one, won't they?!"  (crickets chirping)  Unfortunately, its not always that simple.  

Far too many distraught parents find that entering a new school for a special education student is a negative experience.  For example, Mom gets a call from the school office verifying the secretary saw that her daughter (incoming student) is special education and Mom now believes all is well.  However, when Jenny goes to school, there is no aide, she is not receiving her support services, and no speech and language sessions (supposed to be 3 times a week) are set up.  Instead, Jenny is placed in a mainstream class with nothing more than a "hello."  If she is lucky, a school counselor will show up to greet her.  

To try to avoid this scenario, parents must prepare far in advance of a move.  Here are some potential actions one may take:

1)  Determine what the district of residence is for the new home.
2)  Contact the district and verify the school your child will attend (sometimes schools are impacted and there may be no space).  The school site may change also depending on special education services needed.
3)  Speak to the person in charge of special education services at the new school/district.
4)  Ask them to immediately request copies of the child's records.  
5)  Send your own copies of the current IEP and any relevant assessments.  Often when a student is moving, files will trail them, not arriving until sometime after the student enters.  
6)  Call back to ensure receipt and review of the documents, to verify the services and supports being arranged, what site the student will attend, and all details.  
7)  Reconfirm services are in place prior to entering school.   
8)  Try to get in touch with your child's future teacher(s) and service providers to alert them to your child's entrance, needs, etc. and provide documents to them as needed.
9)  Go with your child on day one and ensure everything is in place (you may need to take the day off of work or be prepared to).  If not, contact the special education coordinator and/or special education director to get things moving.
10)  Work until equivalent services (to the ones on your current IEP from the old district) are in place.
11)  Ensure that another IEP meeting is set up within 30 days and prepare for that.
12)  Remain diligent to ensure services are continuing, checking with your child daily and providers (as needed).

There is probably a lot more which could be done, and this list is just an idea. However, jumping on the situation and helping things along will ensure that the move DOES go smoothly, at least as far as school goes.  Unfortunately, I can't help you with the cable guy.

Best,
Michelle Ball
Education Law Attorney 

LAW OFFICE OF MICHELLE BALL 
717 K Street, Suite 228 
Sacramento, CA 95814 
Phone: 916-444-9064 
Email:help@edlaw4students.com 
Fax: 916-444-1209
[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, July 25, 2016

Mandatory Vaccinations For School: Who Will Be Excluded And Parental Options

By Michelle Ball, California Education Attorney for Students since 1995

Most California public school students must be fully vaccinated to attend public or private classroom-based schools.  If a student is not vaccinated, or does not fit within an exemption, they will be excluded from school until proof of vaccination is submitted.  As a majority of children are vaccinated already, most parents will yawn and send their kids to school.  However, what will happen if a student missed even one shot?  Are there any options if a parent does not want to vaccinate their child for the student to attend regular school?  

The list of required vaccinations is outlined in California Health and Safety Code section 120325 and 120335 and includes slightly different requirements if a student is entering classroom-based school in seventh grade or will start under the new law in transitional kindergarten through sixth grade.  The vaccinations required if a student enters prior to seventh grade are:

     (1) Diphtheria.
     (2) Hepatitis B.
     (3) Haemophilus influenzae type b.
     (4) Measles.
     (5) Mumps.
     (6) Pertussis (whooping cough).
     (7) Poliomyelitis (polio)
     (8) Rubella.
     (9) Tetanus.
     (10) Varicella (chicken pox).

If a student is unvaccinated when they start seventh grade, they do not have to receive the Hepatitis B vaccination.  A presumption may be made that if a student enters beyond seventh grade, this also applies, but the law does not address this.

If a parent missed one of the required vaccinations, or failed to complete all required vaccination administrations (e.g.missed one of the shots in a series), the student may be excluded from school until the vaccination is completed.  The student also may be allowed to continue attending so long as they seek vaccinations within a certain time period (unspecified).

If a parent does not obtain the vaccination within any offered time period, or is not vaccinated promptly, and the parent does not transfer their child to a non-classroom based school or program, it is possible the student will be subject to not only continued exclusion, but ironically, potential truancy breach allegations (breach of mandatory compulsory education laws requiring full time attendance for ages of 6-18 with student being potentially labelled truant after 3 missed days).  As such, any student excluded will be in a bit of a time crunch and will need to act quickly.

There are a few ways around the legal requirement that a child be vaccinated to attend school:

1)  EXEMPTION AND WITHIN GRADE SPAN:  If a parent submitted exemption paperwork prior to January 1, 2016, their child may continue attending the current "grade span" unvaccinated.  Grade spans outlined in the law are from birth to preschool, transitional kindergarten to sixth grade, and seventh through twelfth grade (see CA Health & Safety section 120335(g)).  This means a student entering eighth grade in the fall of 2016 unvaccinated, with a personal belief exemption on file prior to January 1, 2016, may attend through high school.  However, a student entering seventh grade in the fall of 2016 unvaccinated with a personal belief exemption on file is out of luck and must be fully vaccinated.

2)  MEDICAL EXCUSE:  If parents provides a physician's opinion that their child cannot be vaccinated for medical reasons the student may attend unvaccinated (see CA H & S 120370).

3)  SPECIAL EDUCATION:  If a student is a special education student, the law states it "does not prohibit" them from receiving their special education and related services.  The California Department of Health has clarified in their Frequently Asked Questions page, stating:  "Students who have an individualized education program (IEP) should continue to receive all necessary services identified in their IEP regardless of their vaccination status."  There remains some grey area here, and the matter will only be clarified over time and/or by a court or state agency.

4)  ATTENDANCE AT EXEMPT SCHOOL:  Students may also avoid vaccination requirements by attending home-based private schools or public independent study programs with no classroom-based instruction.  An example of this could be seen in an independent study charter or private school where a student remains home for instruction from their parent.  Independent study via a traditional public school may also meet this requirement, so long as no classroom-based instruction is part of the program.

A lawsuit has been filed attempting to reverse the vaccination law based on the right to an education (see for example, Goss v. Lopez 419 U.S. 565).  However, as of right now, the California mandatory vaccination laws, some of the most restrictive in the United States, remain in effect.

The drama and confusion which will unfold in this process will be difficult for some parents.  Hopefully not too many students will be left in the dark or kicked out of their school while it all shakes out.

Best,
Michelle Ball
Education Law Attorney 

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