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.

Thursday, June 2, 2016

School Searches of Cell Phones and Electronic Devices Now Prohibited?

By Michelle Ball, California Education Attorney for Students since 1995

Cell phones are often searched by school officials to gather information in discipline proceedings or to search for crimes alleged.  Parents and students are usually at a loss on whether to allow a search of a cell phone when asked by school officials and the proper scope of any search.  Can a school force a student to allow a search of their cell phone?  What is the scope of the search allowed?  And, what if information on another "crime" is found during the search?  A new law, effective this year (2016), may (or may not) bring some closure to these issues.

In October of 2015, the Governor signed into law SB (Senate Bill) 178, also known as the "Electronic Communications Privacy Act" which is reflected in California Penal Code §§1546-1546.4.  Penal Code Section 1546.1(c) states:  

"A government entity may access electronic device information by means of physical interaction or electronic communication with the device only as follows:

(1) Pursuant to a warrant issued pursuant to Chapter 3 (commencing with Section 1523) and subject to subdivision (d). 

(2) Pursuant to a wiretap order issued pursuant to Chapter 1.4 (commencing with Section 629.50) of Title 15 of Part 1. 

(3) With the specific consent of the authorized possessor of the device. 

(4) With the specific consent of the owner of the device, only when the device has been reported as lost or stolen. 

(5) If the government entity, in good faith, believes that an emergency involving danger of death or serious physical injury to any person requires access to the electronic device information."

Why is this relevant for students and parents?  This code restricts government entities from searching electronic devices without the authorized possessor's consent unless they have a search warrant, a wiretap order, it is an emergency involving potential death or serious physical injury, or the device has been reported lost or stolen.  Public school and school district employees are agents of the government who work for the government run state school system.  Many parents often overlook this fact when interacting with school employees.  As factually vice principals, principals and other school staff are government employees, this law should apply to them.

This sounds fantastic at first glance, right?  A student can refuse to let that demanding vice principal search his/her phone?  It seems so for now, but new codes are always "new" and untested, so we will have to see how this code plays out in the school system.  On the one hand, it seems pretty clear that no government entity can search without consent or warrant, etc.  On the other hand, schools often get away with things which are not allowed in other contexts (searches based on reasonable suspicion, discipline for wearing shirt with American flag, expulsion for off campus drug sign, etc.).  There are many examples of this, so I would apply this code with caution.  We will see how it works out in the school context.  For now, let's tentatively hope that it means what it says and will stop nosy school officials from snooping in cell phones looking for student "bad acts."

Regardless, I have found that many students consent to a search of their phone when asked due to thinking they have nothing to hide, or they must do it.  If the school officials have consent, they may search away.  

Although students are "innocent" in many situations, this does not mean they don't have other damning evidence on their phones which may be encountered during a school official's search.  This data, such as pictures, texts, email, etc. may provide proof of a different crime than the one school officials are investigating, and could be used against the student.  As such, it may be a good option just to decline a request for a search prior to it getting started if possible.  

I expect students to be hassled about search refusals due to the newness of this law, but hopefully school officials will respect students' right to privacy as reflected in this law.  I find this respect unlikely, unfortunately.  I also believe schools will try to balk this law and overturn it as it applies to them.  With the way the courts have gone, I foresee them wiggling out of this law in the school setting.  I hope I am wrong.

The scope of any government search is not defined if voluntary consent is given.  If a warrant is served, the search may be limited to fit the scope of the warrant. 

This law should make for some fireworks.  Hopefully it will lessen the almost continuous intrusions into students' phones and personal data, which is rather common these days.

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 reflect current law, may become outdated and/or may be incomplete, and cannot be definitively relied on.  This blog may not be reproduced without permission from the author and proper attribution of authorship.

Thursday, March 3, 2016

Imitation Firearms, School Discipline And Changes To Penal Code 16700

By Michelle Ball, California Education Attorney for Students since 1995

On January 1, 2016, Penal Code section 16700, regarding "imitation firearms," changed and will potentially help students facing discipline for possession of "imitation firearms." 

Air soft guns, BB guns and other similar devices have proven irresistible items for some students. What fun to get one of these "play" guns and go shoot some targets, right?  Unfortunately, these students have ended up in the school office and usually in front of expulsion panels when possessing these devices on campus or within the zone of a school's area of control (to/from school, field trips, near school, etc.).  

Schools look toward many legal codes to get their guidance.  Often, definitions in the Education Code are vague and other codes may need to be looked to for clarification.  The California Penal Code (lists the criminal statutes applicable in California) is a frequently used reference.  

Per Education Code, section 48900(m), a student may be suspended or expelled for possession of an "imitation firearm."  This section defines what an imitation firearm is as:

"a replica of a firearm that is so substantially similar in physical properties to an existing firearm as to lead a reasonable person to conclude that the replica is a firearm."  

This is not that clear, and is similar to the definition in Penal Code §16700(a) of an "imitation firearm."

Penal Code §16700 subsection (b) changed on January 1, 2016.  Previously, this section stated BB guns were not "imitation firearms," but offered no clarification.

This subsection now better defines what is not an "imitation firearm" (in penal code terms):

"'imitation firearm' does not include any of the following:

(1)  A nonfiring collector's replica that is historically significant, and is offered for sale in conjunction with a wall plaque or presentation case.
(2)  A spot marker gun which expels a projectile that is greater than 10mm caliber.
(3)  A BB device that expels a projectile, such as a BB or pellet, that is other than 6mm or 8mm caliber.
(4)  A BB device that is an airsoft gun that expels a projectile, such as a BB or pellet, that is 6mm or 8mm caliber which meets the following:
(A)  If the airsoft gun is configured as a handgun, in addition to the blaze orange ring on the barrel required by federal law, the airsoft gun has a trigger guard that has fluorescent coloration over the entire guard, and there is a two centimeter wide adhesive band around the circumference of the protruding pistol grip that has fluorescent coloration.
(B) If the airsoft gun is configured as a rifle or long gun, in addition to the blaze orange ring on the barrel required by federal law, the airsoft gun has a trigger guard that has fluorescent coloration over the entire guard, and there is a two centimeter wide adhesive band with fluorescent coloring around the circumference of any two of the following:
   (i) The protruding pistol grip.
   (ii) The buttstock.
   (iii) A protruding ammunition magazine or clip.
(5) A device where the entire exterior surface of the device is white, bright red, bright orange, bright yellow, bright green, bright blue, bright pink, or bright purple, either singly or as the predominant color in combination with other colors in any pattern, or where the entire device is constructed of transparent or translucent materials which permits unmistakable observation of the device's complete contents."

The clarification may help in getting an "imitation firearm" charge dropped in school discipline matters.  This change does not mean, however, that students won't face other school or juvenile/criminal charges, particularly if a BB or airsoft device is possessed on a school campus. (still a misdemeanor under Penal Code §626.10). However, hopefully, this will prove useful for administrators and students when evaluating future discipline matters.  We shall see.

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, February 17, 2016

Resolving An Expulsion Through Pre-Hearing Negotiation

By Michelle Ball, California Education Attorney for Students since 1995

Have you been hit by notice that a school expulsion hearing is being scheduled against your son or daughter?  Should you go to hearing?  How do you get rid of it?  Most parents get a notice and don't do anything but show up at the hearing. However, that may not always be the best strategy.

With school expulsion hearings, there often is no "winning."  Schools line up a myriad of student statements which may conflict with each other to prove guilt. The accused student's statement is ignored, along with his/her friends' statements. 

When the hearing occurs, many schools do not even bring any live witness testimony to the hearing (this is a whole different evidentiary issue), and the panel evaluating the matter is made of school district employees already biased against the student.  Does this sound like a fair system?  Regardless, it is the system that exists for students and their parents to face.

Additionally, district expulsion panels seem to believe they are limited in what they can do as far as punishment, to expulsion or suspended expulsion, and do not think outside this very punitive box.Sometimes panels do find students innocent, but it is certainly a rare occurrence due to the stacked deck and presumed guilt.

If a student really is innocent and this can be proven, hearing may be the only option if the school won't drop the matter.  However even with innocence, hearing still poses a risk no matter how good the case, particularly with difficult accusations that other students back up.  Witnesses can lie or misperceive, to the detriment of the accused student.

If a student "did it" or did something which makes them culpable in some manner, negotiation options which might be open to a student pre-hearing may disappear at hearing due to the panel's potentially narrow view of punishment options and bias.  Sometimes panels may be persuasively reminded of non-expulsion options but one never knows what will happen. 

With most situations, parents should try to explore pre-hearing negotiated outcome if at all possible. This usually has to be sought, as the school will not generally seek out a parent to offer a negotiated outcome. Or, if they do approach parents, the school's offer is just to "stipulate expulsion" which basically means the parent signs their agreement to the expulsion proposed and no hearing will be held. 

I have discussed various options in a previous post, but continue to be saddened by parents who proceed to hearing naively believing the expulsion panel will "hear them" and "understand," only to later end up in my office with a full blown expulsion having already been issued.  Once that expulsion decision issues and is ratified by the school board, the only option is to appeal to the local county board of education, and there may or may not be adequate bases to support appeal.

Negotiating the expulsion pre-hearing is often a good option for students, and can result in a very positive outcome.  Such outcome, even if it involves some form of punishment, may still be a victory when the potential hearing outcomes are reviewed.  Attempting to negotiate generally serves the best interests of the student involved, to try to obtain the most positive outcome possible.  It is certainly better than blindly showing up and hoping a panel of district employees sees it the student's way. They may, or more likely, they may not.

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, January 27, 2016

School Discipline For Damaging School Or Private Property

By Michelle Ball, California Education Attorney for Students since 1995

We all know that our kids' schools can expel or suspend a student for a myriad of items listed in state law and reflected in the school or school district handbook(s). One of the bases for such discipline is basically for damaging (or trying to damage) property.


Per California Education Code §48900(f) a student may be placed up for suspension or expulsion if the student: "Caused or attempted to cause damage to school property or private property."  This may seem very simple and straightforward, but due to its wording, this section allows the schools way too much latitude to punish.


The language which is most problematic allows punishment for an "attempt" to damage property.  What does this mean?  What if a student tries to write on a wall but his pen is out of ink?  What if a student pretends he will dump water on another student's backpack as a prank, but pulls back at the last second: is this an attempt to damage private property despite lack of intent?  What if a student takes another student's shoe and throws it in the air.  It hits the ground but is not outwardly damaged. Is this suspendable? 


Another issue is what is "damage?"  Is damage to property found in eating another student's food (even a minimal amount, such as a carrot stick) at lunch?  I have seen this alleged (along with theft) in a food eating scenario.  What about taking some paper from another student without permission and writing on it?  Is this just normal kid stuff or suspendable damage?  It is very vague what damage is and how much damage must occur under this statute for an offense to occur.  

How about a student who actually draws in a textbook?  That student's parent is already going to face some monetary penalty for this.  Should the student, who may be 7 or 8 years old, be suspended?  It seems like an overreaction, but the code arguably could allow it.  


Unfortunately, this section provides way too much discretion for schools to punish for things where maybe a student should just have a "talking to," receive a detention or simply have no punishment at all depending on the "offense." 

Sometimes it can be more clear an offense has occurred.  For example, if a student takes a permanent marker and purposefully draws obscene marks all over another student's shirt.  In most cases, however, it may not be as clear.

Ultimately, the cards in evaluating damage or attempts to damage school or private property are held by school personnel.  Whether administrators decide if a student should receive a suspension or expulsion for minor activity will depend on the climate at the school, the administrator's attitude, and (hopefully) the seriousness of the activity.  

It may benefit parents to discuss this section with their children lest it be used against them, as this is another potential punishment zinger for kids.

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, January 11, 2016

When A Bullied Student Becomes A Target For School Discipline

By Michelle Ball, California Education Attorney for Students since 1995

Over the years, I have heard many terrible stories, but some of the saddest are when a student who is a victim is disciplined, while the bully escapes punishment. Sometimes it is very clear that the victim did nothing but is being lied about by the bully.  Other times, the victim is punished for fighting back and breaking rules in their response to the bully.  Either way, parents and students need to act before a situation turns against them.

It may seem logical to assume that a school will act on reports of targeting a student.  Bullying and its dramatic negative impact to students is everywhere and "bullying" itself is the new buzz word in education.  It seems, at least in the media, that once someone alleges they were bullied, magic happens.  In the real world, this is not always the case.

Schools are legally obligated to do something when a staff member observes and/or receives a report of bullying.  However, we all know that just because someone is supposed to do something does not mean they will.  Baffled parents sit confused asking why there is a law if no one will follow it?  This is the same question  as "Why do people steal?"--  because there are people who don't know or care what the law says.  There are also schools and school districts whose staff don't know their legal obligations to act and/or don't care.

I am confused when a school fails to act despite knowledge of bullying, as it is easy for schools to jump in.  Yet, many schools blow off student reports as just "gossip" or false.  Being ignored, a student may develop the feeling that he/she has no option but to defend themselves (and in fact may be right).  The bullied student may then be caught and punished by the school if they factually DO break a rule e.g. by hitting the bully in the face.  This punishment of the bullied student, while legally allowed, ignores the fact that due to the school's utter lack of correction, the student felt they had (or did have) no other option than to get pummeled by the bully.

A Hypothetical Example Of Bullying And A Lack Of Follow Through

Here is what this type of situation could look like: Student B (Bully) tells Student V (Victim) he will beat Student V up.  Student V worries but does not report the statement.  Student B then starts calling Student V names and threatening Student V daily.  Student V tells his teacher and the teacher says she will talk to Student B. Student B stops for about a week.  Then Student B (plus Student B's friends) start up again, and Student B corners Student V in the bathroom, telling Student V he should not have gotten Student B in trouble.  Student B then threatens to beat up Student V if he tells again.  Student V tells his teacher, who tells Student V that Student B was handled and is a good student.  In other words she does not believe Student V.  The teacher never reports Student B to the office, or reports but does not follow through.

Student V, after continuing derogatory comments from Student B, and being pinched, poked and maybe hurt some other way by Student B and his friends, goes to the office.  Student V tells the secretary, who says she/he will tell the Vice Principal.  The VP, if we are lucky, gets a note or voicemail stating there is an issue.  However, often the VP will not do anything or will forget about it, and may not tell Student V's parents.

Student V meanwhile is continuing to be hurt and intimidated and his school work and grades suffer.  His parents think it is his computer usage and take his computer away.  Student V is embarrassed and does not tell his parents the truth. Student V goes to the office again as Student B is now threatening to kill him daily and throwing sharp objects at him.  Students C, D, E, F, and G may also now be involved in targeting Student V.  Student V again goes to the office and tells the secretary.  Things continue unabated.

Student V tries to "stick it out" and "be tough."  He knows the school won't help him, and he knows that he needs to protect himself or he could be seriously injured.  So, he brings a knife to school, or makes a plan to hurt the students so they will leave him alone.  Maybe he writes a list of students he does not like. Student V then is caught with the knife or alleged to have made a "hit list" about students, and is suspended and placed up for expulsion.  His family finally finds out about the bullying, now too late, and brings this up as a defense.  The school ignores the parents, explaining it does not matter as Student V broke the weapons/threat rules.  As Student V factually did break rules, this gives the school the right to discipline him.  Sadly, Student V is expelled while Student B remains in school.  

This may sound far-fetched but it is not.  I have seen this scenario unfold, often after the student victim is already up for expulsion, which the family is left to battle.

Had the bullying been handled effectively in the beginning, nothing would have escalated.  Student V would never have been in the position to be suspended or expelled as he would not have had to hatch a plan to defend himself.  Had the teacher believed Student V, sent Student B to the office to be suspended and followed up with protection for Student V, the situation may have been solved. Had the secretary or VP followed up and done something effective, such as suspend or expel Student B and his friends, Student V might have had a different future.

If a child reports bullying, parents should follow up in writing with the school to ensure something is done.  A plan needs to be developed with school staff to address the situation fully.  Parents thereafter need to ensure the school does what it promises and that no new incidents are occurring.  

Don't wait until the student victim has to resort to their own plans of resolution, which often means rule-breaking and punishment.  Suspension or expulsion may haunt the student for years to come, including when applying to college.  

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, November 17, 2015

Special Education Basics: "We Don't Have Those Here" Is Not A Legal Reason To Deny Special Education Services

By Michelle Ball, California Education Attorney for Students since 1995

So many times I have met with parents who are beside themselves, unable to obtain services for their child based on a school "not having" services available at their site or in their school district.  Parents are often unaware that denial of special education services based on unavailability or lack of providers is not legal.

Special education is based on the "unique needs" of each special education child and meeting those needs with educational services tailored to that specific student. Parents, being unaware of their rights and/or believing that a school IEP (Individualized Education Program) team is acting in the best interests of their child, mistakenly believe statements such as "We don't have any speech services in the school district;" or "There are no occupational therapists available here;" or "Those services are not provided in this school/district," to support a lack of service provision.  Agreeing with these misstatements means the child does not get the services he or she needs.

If a special education student is qualified (e.g. services in the child's IEP) for educational or related services, such as speech and language therapy, behavioral therapy, occupational therapy, one-on-one instruction, vision therapy, aide services, transportation and a myriad of other services, provision of such services CANNOT BE DENIED based on unavailability of service providers.  If a school or district does not have a qualified provider available and/or in that district, they are obligated to pay for services outside the district and to pay for transportation costs to and from those services.  For example, if there is no occupational therapist (OT) available to provide the 2 hours a week a student is entitled to, the district must pay a private OT provider to deliver services.

Why do parents believe IEP teams when they say they don't have to deliver services as they don't have the personnel?  My theory is that parents are often too busy to know their rights and rely on the school to do their job.  IEP team meetings are often very friendly, almost like social events, and parents tend to trust the school representatives as "authorities" and "having more experience" than the parents.  However, trusting the team to act on the student's behalf and do what is needed to help the student advance adequately year-to-year can be a mistake. Parents' first lesson is that they need to educate themselves and not blindly listen to denials.  

Another related wrinkle here is that schools try use the lack of personnel to avoid assessment (and thus potential qualification) altogether.  However, if a school or district lacks personnel to assess, they must hire qualified outside help to assess for all areas of potential need.  

Don't be fooled.  If your child is entitled to services, they need to be delivered.

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!]

Thursday, September 17, 2015

Student Records Problems? Contact The Family Policy Compliance Office

By Michelle Ball, California Education Attorney for Students since 1995

Have you ever had a problem getting your or your child's student records from a school?  Or, have you encountered school staff speaking about your confidential student records in public locations or to other parents?  If so, there is an agency which may be able to help: the Family Policy Compliance Office (FPCO).

FPCO is a part of the United States Department of Education (USDOE) and is located in Washington DC. They enforce the Federal Education Rights and Privacy Act (FERPA), a federal law addressing student records rights at schools which accept federal funding. 

Complaints are accepted by FPCO from across the country regarding public and private schools which breach students' records rights.  Due to jurisdiction being limited to schools accepting federal funds, usually private schools at the elementary and secondary levels are not subject to FERPA.  

Per the USDOE website and the "FERPA General Guidance for Parents," some of the breaches which FPCO investigates include:

1)  Failure of a school to allow inspection and review of student records by a student and/or his/her parents/representatives.
2)  Failure of a school to provide a process to challenge the factual contents of records (opinions, grades or "substantive decisions" are not subject to challenge).
3)  Wrongful disclosure of information from confidential records (unless the person learned of the information some other way, had an "official role" in making a decision leading to the protected record, or the school official receiving the information has a "legitimate educational interest").
4)  Issues involving student/parent permission to disclose/not disclose records.

FERPA grants records rights to adult students as well as custodial and non-custodial parents.

An FPCO complaint must be filed within 180 days and may be mailed to:

U.S. Department of Education
Family Policy Compliance Office
400 Maryland Avenue, SW
Washington, DC 20202-8520

If you prefer to file electronically or would like more information on the whole process please visit the FPCO complaint page.

Be advised that FPCO complaints are not always the fastest way to go (a recent one I am aware of is still ongoing at nine months).  If you need to get a matter solved more quickly, involving an attorney is always an option.  I have been involved many times when parents could not get their children's records released or a college would not turn over copies.  I am always baffled when schools blatantly ignore FERPA and other laws which clearly apply to them.

So, if your requests for records have been denied, a teacher is spreading confidential information from records (e.g. special education or discipline information) around to improper people, or the school will not provide a process for you to challenge the factual contents of student records, a complaint lodged with FPCO may be warranted. 

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, September 9, 2015

Education Attorney Versus Education Advocate

By Michelle Ball, California Education Attorney for Students since 1995

Attorney or non-attorney advocate?  What is the difference?  Parents faced with a school issue, such as expulsion or a special education problem, often do not know who can help.  Do parents really have to hire an attorney?  What about the lady you heard about who helps parents?  Here is the lowdown on advocate versus attorney and how it relates to your school issues.

I am an attorney, licensed to practice law in California.  However, a lot of what I do daily is advocacy.  Advocacy is basically helping a cause (my clients' cause).  Per Merriam-Webster.com "advocacy" (noun-thing) is "the act or process of supporting a cause or proposal."  To "advocate" (verb) is "to support or argue for (a cause, policy, etc.).  An "advocate" (noun- person) is "a person who argues for or supports a cause or policy."  So "advocate" can mean different yet similar things.

The distinction between my advocacy as a licensed attorney versus someone who is a non-attorney advocate, is the legal degree and the power to use it for the benefit of my clients.  This is not a small thing.  Being an attorney, I can use the courts, legally interpret the law, and use the power of the law to change my clients' situations.  I can also back up what I say with court action if my clients want to go that way.

An advocate who is not a lawyer, can "advocate" in the sense that they may rally for a cause, but they do not carry the power of the courts behind them.  They may not be formally trained, whereas lawyers have many years of training in law.  This is a big difference, and it means schools may treat a non-attorney advocate differently than they treat an attorney.  So who you pick may depend on how fast you want things done or how effective you want to be.

Lawyers practice advocacy, but advocacy with teeth (good enforceable laws), presuming the teeth are available.  In some situations there are only baby teeth involved (weaker laws) which give us less leverage.  Attorneys leverage what they have for their clients' benefit.  As my Contracts professor used to say, attorneys should: "Pound the law if you have the law.  Pound the facts if you have the facts, and pound the table if you have neither."  Sage advice.  Attorneys pound everything (not literally) with whatever they have, and fortunately for our clients it can be beneficial.

If you have ever received a letter from a lawyer and shook, you know why lawyers should be involved in school issues.  They have that unidentifiable power and you want that power to be leveraged to resolve your child's expulsion or to help with college problems or to help with a teacher who has gone too far.  You want to move things forward.

Advocates (attorney and otherwise), are needed in all fields to try to help people. However, the power of the law stands behind every attorney, which is why, if you invest your money to try to get something done, attorneys are a strong bet.  

[This communication may be considered a communication/solicitation for services]

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, August 20, 2015

Why Won't The School Implement My Child's IEP Or 504 Plan?

By Michelle Ball, California Education Attorney for Students since 1995

Time and time again, I meet with parents who are baffled why their child's IEP (Individualized Educational Program) or 504 Plan (accommodations plan) is not being implemented at school.  Sometimes parents do not notice for years that although their IEP or 504 has many items which are supposed to be done, not all of them ARE being done.  This can be a heartbreaking discovery as lack of implementation may waste years of valuable time for a child.

Special education (both IEPs and 504 Plans fall under special education), is awash with issues like this.  There are always questions of qualification and what to include in the IEP or 504.  But, once the 504 or IEP is finally complete, most parents mistakenly put their minds on other things, trusting the school to follow through.  Not so fast.  A parent's job is NEVER EVER done when their child is in school, special education or otherwise.  Rather, parents have to babysit the school and their implementation of any IEP or 504.

So many parents trust school personnel to act like the parent would in life- responsibly.  Yes, teachers and staff are generally responsible adults and carry out their duties; however, there are a large portion of them who do not always do ALL that is required of them.  In other words, some things get left behind: perhaps 504 accommodations or IEP implementation in the classroom?

Teachers may also lack knowledge, either because no one followed up with them after an IEP/504 meeting, or the plan got buried in their in-basket.  Sometimes there is an attitude of "That is not my job," or "I am too busy with my other kids to work on this."  IEPs or 504s can be poorly written as well, or so vague as to be almost meaningless.  Maybe they are too dense to be easily digested by teachers, who remain confused so do not act.  Schools themselves can also be disorganized and/or constantly putting out fires, thereby dropping the "small stuff."  Once in a while there are staff who flat refuse to honor IEPs and 504 Plans.  In all of the above, only the squeaky wheel gets attention.

Parents must remain on top of the situation to ensure their child does not get overlooked.  Email to teachers and staff weekly can help ensure that items in the IEP are being implemented and can also alert a parent to problems.  If staff refuse to email back or communicate with a parent, this must be addressed immediately. The obligation for the teachers to respond can be written into an IEP or 504.

Speaking with the child to see if services are being done is also important.  For example, is the student being pulled out for services?  Is someone working with them in class?  Is the student able to go to the resource room to take tests?  What should be being done at school depends on the IEP or 504 Plan.  

A classroom inspection to see how things really are at school can often be illuminating.  School visitor policies should be followed.

Ultimately, our trust in the schools and their competence should be earned.  And it has to be earned yearly, depending on the staff involved.  I have far too many times met with parents who trusted for years, only to find out their child never received a service and has deficient skills.  It is very difficult to get those years back in education-land.

You make sure items are being done and implemented.  You ensure your child is getting the services he/she is entitled to, and which are agreed to in his/her IEP or 504 Plan.  Take an active, albeit respectful, role in your child's education so your child can win the education race, and not be left in the dust.

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 9, 2015

High School Sports And Gender Identity- Which Team Can I Play On?

By Michelle Ball, California Education Attorney for Students since 1995

Is your son or daughter transgender, identifying as the opposite sex?  Do they play sports?  Which team do they play on: the teams of their physical gender (for example, female for female teams or male for male teams) or consistent with their gender identity?  Per the California Interscholastic Federation (CIF), the governing body for California high school sports, they might be able to pick either team.

Per the 2015-2016 CIF Bylaws, "Guidelines for Gender Identity Participation," hereinafter "Guidelines" [scroll down to the "Policies" section in the link]:

"All students should have the opportunity to participate in CIF activities in a manner that is consistent with their gender identity, irrespective of the gender listed on a student's records.  The student and/or the student's school may seek review of the student's eligibility for participation in interscholastic athletics in the gender that does not match the gender assigned to him or her at birth."

The process for playing sports as one's gender identity, is roughly as follows (see "Guidelines" linked above for exact specifics):

Initial Filing: 
1)  The student and/or their parents contact the school administration or the athletic director regarding the fact the student has "a consistent gender identity different than the gender listed on the student's school registration records" and that they want to use that gender to participate in sports.
2)  A school administrator is to then contact the CIF where a "facilitator" for the "CIF Gender Identity eligibility appeal process" will be assigned.
3)  The student must then attend an appeal hearing in front of a 3 person panel, the Gender Identity Eligibility Committee (GIEC), to be scheduled no later than 5 school business days before the first sports event in the relevant sport (exceptions apply).
4)  One person on the panel must be a physician or psychiatrist with experience in gender identity health care and familiar with the "World Professional Association for Transgender Health" (WPATH) care standards.

Appeal of GIEC decision: 
1)  If the student is dissatisfied with the GIEC results, they may appeal to the Executive Director of the CIF.
2) Such appeal must be filed no later than ten school business days after the student receives the written decision of the GIEC.
3)  The appeal is to be scheduled with at least five school business days notice.

Described in the policy is the fact that certain documentation should be provided to the GIEC for the panel to make a determination, including school transcript, registration information and documents showing "student's consistent gender identification." These are basically described as sworn statements from the student, parents, and/or health care providers.

As with any hearing, it is always important to PROVE the important points so success is achieved.  It is much better to win on the lower level than to have to go through an appeal, so being incomplete or light on documentation is inadvisable.

The CIF policy also mentions facilitating the provision of training and resources for schools regarding gender identity, which may be helpful to ensure a smooth transition.

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.