Monday, March 30, 2020

The Bright Side: Resolving Student Expulsion Matters During Coronavirus Could Result In Better Outcomes For Students

By Michelle Ball, California Education Attorney for Students since 1995

Was your child recommended for a school expulsion prior to being sent home indefinitely due to Coronavirus aka COVID-19?  Do they have this issue now hanging over their head indefinitely due to school shut downs?  Now may be a great time to try resolve that pending school discipline matter.

Everything has been in turmoil at schools since the Coronavirus hit, and this also includes school discipline.  One positive thing that could come out of this is that there may be months with no students being suspended or expelled and thus great school discipline records for millions of students.  Clean school discipline records are good for college applications and for students themselves, as a clean school discipline record gives a positive impression.  This IS a bright side to the current Coronavirus trauma going on.

If you have a student with a pending discipline matter, like a school expulsion, it is likely your formal expulsion hearing has been pushed back, maybe indefinitely.  

There are heavy legal questions surrounding this postponement/delay, as school expulsion hearings legally must be held within 30 schooldays and cannot be postponed even during summer vacations.  

Per California Education Code 48925(c):

"'Schoolday' means a day upon which the schools of the district are in session or weekdays during the summer recess."

The current situation with kids at home trying to access on line opportunities is similar to summer vacation, yet it is also similar to a regular school day, as on the one hand students are receiving education (schoolday) and on the other they are out of school (like summer).   What rights do parents and students have in this situation?  

The California Education Code does not have a mass emergency medical disaster section with regard to expulsion time limits, so we have to look to current codes.  If the days students are at home are considered "schooldays"  they count toward the legal time limits for pursuing discipline, and students technically should get their expulsion hearings within 30 schooldays, even during this situation. 

Regardless, if a student has a pending expulsion, and the hearing was pushed back, due to this uncertainty, now may be a great time to try to resolve any pending school discipline and negotiate a more positive expulsion outcome.

The first hurdle will be to get a hold of the people in charge.  School district administrators are presumably very burdened right now with all that is going on.

However, once they are reached, reasonable outcomes in light of the Coronavirus situation can be attempted.  Parents can try to negotiate a total dropping of the school discipline matter or a reduction in the sentence.  Starting any discipline now could be positive as students are at home anyway.  Regardless, they are still entitled to an education during expulsion and could opt to attend online options, enroll in a charter school, or their parent could even file to become their own private school during the time of the discipline (easier than you may think).

Regardless, parents can try to turn this ugly situation into a winning one, and try to resolve their pending discipline matters due to the current uncertainty.  There may be nothing to lose for the student, who could have a much more positive school discipline record in the end.

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. 

Thursday, March 26, 2020

Special Education During COVID-19/Coronavirus- 5 Actions Special Ed Parents Need To Take Now To Help Their Children

By Michelle Ball, California Education Attorney for Students since 1995

The last two weeks have been a real NEW thing for all of us: being forced home with fear, and with our kids being excluded from school, with no or limited schooling being provided or being provided by us to the best of our abilities.  Meanwhile the Governor of California has stated that school may not be back in until the 2020-21 school year.  There are serious issues in this moment for kids, parents and education.  If your child is a special education student, the issues are probably ten times worse, as now they are not getting their services and supports.  

The first question to ask is IF your school or school district is actually providing distance learning right now?  If so, your child should have access to it.  If not, parents need to get in gear and demand this occurs.  

Special education kids need instruction even more than others due to the potential for regression when away from their education and related services (for example, speech, occupational therapy, adaptive physical education, behavior therapy, other therapies).  

If you are a special education parent and your child has an Individualized Education Program (IEP), you are likely well aware of what Extended School Year (ESY) services are.  These are the summer programs and support services which your child may receive so they don't lose gains they made during the traditional academic year.  The normal summer break is only about 2-3 months depending on when your school gets out, and many special education students are entitled to ESY services for this short period to prevent regression.

With the Governor's statement, if true, our kids will be out of school from March to August, which is almost SIX MONTHS.  If a student would regress during the short summer break, what happens with a break that is double the normal time period?  Even special education kids who may typically not need ESY services to prevent regression can regress during such a long school absence.  Years of support may go down the drain if a student who has made great behavioral or other strides in school is home for this extended period with no substitute.  It is a real problem and is unacceptable.  

Additionally, special education students often require more intensive individualized services.  Even if a school provides some video instruction, how will this help the student who needs more unique instruction and intervention?  And what if they need a classroom aide to assist them and their parents are not trained to provide this type of support?  Who will train their parents to help them?  

Recently, the United States Department of Education (USDOE) released a statement on special education services during this crisis.  In this document it is explained that special education students must be provided with an equal opportunity to access their education to general education students.  If they don't have a computer to access those programs, presumably one should be provided by the school or school district.  The student also must be provided with equipment, gear and programs to make the computer accessible for them.  Per the document "federal law requires distance instruction to be accessible to students with disabilities."

What if they are not trained how to use such a device in their home?  Presumably some instruction must be provided by the school district.  School districts must rapidly address these needs.

Students with IEPs also must be provided with their related services while in the home if at all possible.  For example, the USDOE document references provision of speech via video conference.  It is conceivable many other services could also be provided to students, including therapy and behavioral counseling, even socialization groups.  If not, it is also referenced that perhaps students will have claims to receive compensatory services once "regular" school resumes.

Ultimately, special education parents should start with the following steps:

1)  Find out, if not known already, if your school/district is providing educational services for its students.
2)  If so, ensure your child has all the gear to access this service and is receiving education in all classes being offered.  If some classes are missing, figure out how they can access these classes.
3)  If the services are via computer and your child cannot use a computer or needs adaptive gear or programs to do so, or if you don't have a computer, meaning the child cannot access the curriculum, get in touch with your school/district/special education coordinator and get them to provide the necessary technology, programs and training.
4)  Coordinate with your special education team about how your child will be provided their related services during this time.  Where is their speech to be delivered and how?  What about other online options? What about parent training for home support?
5)  See if you can convene an IEP via phone or teleconference to address these issues for the short term (only while this crisis continues).  If the full IEP team is not available, a reduced group can still discuss and solve these issues.  If no teleconferencing is available, parents can still develop a temporary plan with the staff for their child via email.

There are a lot of questions about what to do, but as with all things, action is required to move things along.

Parents should act fast and not wait at home for the school or district to act, while their child sits not getting services and losing their gains.  We work hard for their success and we should not be forced to lose advancement in one fell swoop.

Take action and be well.

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. 

Wednesday, March 4, 2020

Top 5 Parent Rights In School Expulsion Hearings

By Michelle Ball, California Education Attorney for Students since 1995

Expulsion hearings are horrific for parents due to the suddenness and shock of the situation ("expulsion- what?!"), and the lack of experience most parents have in the expulsion hearing process.  Top this off with administrators who may tell parents that, "The hearing panel will understand," (when they won't) or "You should do the hearing fast so Joe can get back to school," (when the administrators know that Joe probably will be expelled, not returned to school), and other falsehoods to lull parents into a false sense of security.  It is all very difficult to say the least.  If parents don't watch it and get educated, they may end up with their child expelled, and wonder what just happened.  

So, I thought it may be a good idea to remind parents of some of their key rights in the California public school expulsion process.

1)  The Right To An Expulsion Hearing:  This is one of the most basic rights of all (see California Education Code Section §48918(a)(1).  Many districts attempt to get parents to waive this right and sign a "stipulated expulsion" where they agree to the expulsion.  Whether this is a good idea will depend on the charges, circumstances, the child's discipline history, his/her guilt and other factors, but rule number one is don't just waive your hearing without considering everything and what the terms of the discipline proposal are.

2)  The Right To Proper Notice Of Hearing:  The District has to forward a written hearing notice 10 days prior to any expulsion hearing date per Education Code §48918(b) with certain mandated notifications included in the hearing notice.  The failure of a school district to meet this timeline can be instrumental in getting an expulsion overturned on appeal.  

3) The Right To Request And Obtain All Evidence And Documentation Pre-Hearing:  Parents need to request their child's complete educational files, as well as the school district expulsion packet early in the process.  Per Education Code §49069.7, parents have the right to all of their child's records, and per Education Code §48918(b)(5) they have a right to the expulsion records and evidence.  I have had parents tell me they did not get the evidence the school presented at hearing, or they were not received until the hearing was held.  This can be prevented by making a written request for documents early in the process.

4)  The Right To Never Have An Expulsion Proceed Based On "Hearsay" Alone:  This is a big thing, and is somewhat complex.  Attorneys have a whole year in law school on the rules of evidence, and hearsay is a very key part of these rules.  There is no way I can explain what hearsay is here, but needless to say, generally, if the student did not admit he "did it," and there are no witnesses at hearing in person who testify to what they saw (excluding an alleged sexual battery/assault victim), generally an expulsion cannot proceed, see California Education Code §48918(f)(2).  School districts break this rule frequently, with hearings where no one testifies and no witness says the student "did it" at the hearing itself.  I must caution, there are very complex rules around this, what does and does not count as "hearsay,"  the allowed process for getting "hearsay" documents admitted as "non-hearsay" etc,  but schools often mess this up.  This can also be a great reason to overturn an expulsion on appeal.

5)  The Right To Not Have Your Child Testify At The Hearing:  This is a very important right for parents, and whether a family exercises this right, will depend on the situation, and the evidence.  This right stems from the basic right to make decisions with regard to your child which every parent shares.  Whether your child should testify is VERY TRICKY TO EVALUATE and sometimes it is good for them to talk.  In other cases, it is not positive for them to speak, as the child may prove the school's case for them (e.g. it may help the school to expel them).  This is so difficult to determine, that sometimes I cannot evaluate whether a student should testify until the school has presented their case at the actual hearing itself.  

Whether a student should testify has to be evaluated matter to matter, depending on the unique facts and evidence in the case.  I list this as important here as most parents think they HAVE TO have their child speak as they are told this by school or district personnel and also at the hearing itself.  Parents may even be sneered at or invalidated if they refuse to allow their child to testify, but regardless, the parents are the ones who determine if they will allow their child to testify at an expulsion hearing.

There are many other rights in expulsion hearings, but parents should first get familiar with these five to help their children in the terrible process which school expulsion is for everyone concerned, but most particularly their child. 

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. 

Thursday, February 6, 2020

School Suspension For First Offense Is Frequently Prohibited, But Schools Continue To Ignore Legal Mandates

By Michelle Ball, California Education Attorney for Students since 1995


In 2013, the California legislature amended Education Code §48900.5, clearly specifying when a student can and cannot be suspended for a first offense, designating what offenses were excluded from this prohibition, and just what "other means of correction" may be attempted instead of suspension.  Yet, to this day, this code remains ignored and improperly applied, which means thousands of students across California are being illegally suspended in breach of §48900.5.

The bad news here is that to get these improper suspensions out of a student's records, a legal argument needs to be made to the school or district, and they don't always believe parents nor determine that §48900.5 applies.  When legally challenged on the improper imposition of a suspension in breach of §48900.5, with clear arguments being made, they may remove and expunge the wrongful suspension from the child's records.  However, removal is not always certain, and presents a hassle for parents to pursue.  Schools can still assert their right to balk the law or try to allege "danger."  It would be much easier and fairer if schools would just not suspend for first offenses as described in §48900.5.

To reiterate what §48900.5 says:
  
(a) Suspension, including supervised suspension as described in Section 48911.1, shall be imposed only when other means of correction fail to bring about proper conduct. A school district may document the other means of correction used and place that documentation in the pupil’s record, which may be accessed pursuant to Section 49069.7. However, a pupil, including an individual with exceptional needs, as defined in Section 56026, may be suspended, subject to Section 1415 of Title 20 of the United States Code, for any of the reasons enumerated in Section 48900 upon a first offense, if the principal or superintendent of schools determines that the pupil violated subdivision (a), (b), (c), (d), or (e) of Section 48900 or that the pupil’s presence causes a danger to persons.

Sections (a)-(e) of §48900 cover the following offenses (the student may be suspended on a first offense for these actions):

(a) (1) Caused, attempted to cause, or threatened to cause physical injury to another person.
(2) Willfully used force or violence upon the person of another, except in self-defense.
(b) Possessed, sold, or otherwise furnished a firearm, knife, explosive, or other dangerous object, unless, in the case of possession of an object of this type, the pupil had obtained written permission to possess the item from a certificated school employee, which is concurred in by the principal or the designee of the principal.
(c) Unlawfully possessed, used, sold, or otherwise furnished, or been under the influence of, a controlled substance listed in Chapter 2 (commencing with Section 11053) of Division 10 of the Health and Safety Code, an alcoholic beverage, or an intoxicant of any kind.
(d) Unlawfully offered, arranged, or negotiated to sell a controlled substance listed in Chapter 2 (commencing with Section 11053) of Division 10 of the Health and Safety Code, an alcoholic beverage, or an intoxicant of any kind, and either sold, delivered, or otherwise furnished to a person another liquid, substance, or material and represented the liquid, substance, or material as a controlled substance, alcoholic beverage, or intoxicant.
(e) Committed or attempted to commit robbery or extortion.

You may recognize these are the more violent and dangerous offenses for which a student may be suspended.  Some of these also warrant a mandated recommendation for expulsion.

Regardless, if a student is not suspended under one of these subsections, and their offense is not "dangerous," they are NOT supposed to be suspended on their first offense, but should receive an alternative to suspension instead.  Examples of alternatives could be to complete a task at school, receive a detention, receive counseling, etc.  There is a long list in §48900.5(b).

What I have found is either the school officials are unaware of the requirement that alternatives to suspension be applied, or they don't care, and just keep imposing suspensions for non-violent offenses like they "always" have.  However, the amendment in 2013 to §48900.5 created a new standard that has to be met for a suspension to proceed.

Parents need to evaluate the suspensions their children are receiving, and challenge them where appropriate: where the suspension is a first offense, is not under §48900 (a)-(e) and is a non-dangerous offense.  This is the only way schools will start following the law and stop kicking our kids out of school for minor offenses.  The legislature meant what it said and the schools need to follow their clear mandate regarding first offenses.  Make sure that they do.

Best,

Michelle Ball
Education Law Attorney 

LAW OFFICE OF MICHELLE BALL 
717 K Street, Suite 228 
Sacramento, CA 95814 
Phone: 916-444-9064 
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, February 4, 2020

What is an SST aka Student Study Team and What Do They Do?


By Michelle Ball, California Education Attorney for Students since 1995

Schools seem to chug along unattended- Johnny goes to school and comes home and does his homework and on and on like a spinning wheel.  Then one day, a school administrator calls and says Johnny has been referred for an "SST meeting."  They then give a quick explanation about a school "SST team" which will help Johnny while you, the parent, sit confused, thinking that Johnny is really going to get some help this time, and being thankful that you got this call.  But until you know what an SST meeting or team are, it is hard to know for sure how excited we should get.

So, I thought I would clear up what an SST is, the value of an SST (or lack of value), and what the results should be of an SST.

Okay- I have heard the abbreviation SST interpreted different ways over the years, but here are the most common "definitions" of this term:

-  Student Study Team or their SST Plan or their SST meeting
-  Student Success Team or their SST Plan or their SST meeting
-  Student Support Team or their SST Plan or their SST meeting
-  Supercalifragilisticexpialidocious.... wait no that's not it. 

This SST team is made up of unspecified school staff, such as teachers, administrators, and others working in that system, who may (but don't have to) decide to get together at an SST meeting when a general education student is having struggles in school with his/her studies, behavior, or otherwise.  This is a general education "tool" to try to assist a student, and implement some strategies to avert the student's apparent decline in school.

An SST Plan (just called an "SST") may list areas of difficulty, what the parent will do to help remedy this and minor things the school will do, with responsibility assigned generally to e.g. the "teacher."  

This is great for kids that are not in special education or on a 504 (disability accommodations) plan or who don't want to be.  However, the bad thing about SST plans is that they are not enforceable similar to a 504 or IEP (Individualized Education Program- special education plan).  An SST is nothing if no one decides to do the steps outlined.  So it is important that the staff drafting the SST are honorable and actually implement it.  In other words, parents cannot go in later and say- "You were supposed to do x, y and z for Johnny per the SST!" and file some claim against the school for a remedy. 

SST plans are good when the staff and school are behind them.  In that case, if a student needs some additional general education support, they can help students.  For example, if the plan decides Johnny needs to be checked on more frequently than others, and the teacher does this based on the SST, Johnny could benefit greatly.

I have often seen SSTs touted as things parents have to endure prior to moving to a 504 or IEP assessment, which is not legal.  An SST cannot be mandated to occur BEFORE a 504 or IEP assessment proceeds at parent request.

SSTs also have no legal timelines, unless a timeline is outlined in school or district policy.  In fact, any mandates for SSTs would only be found if a school district bound itself and its schools: for example, if a school board votes to implement a policy that all SST meetings will be held X number of days after parent request, that could potentially obligate them.  However, in that case, the district would have to BIND ITSELF to do this. 

Anyway, SSTs are basically plans that are great if you have good staff that will actually follow through.  Some schools do, so they are worth a shot.  Parents, however, may have to help the school follow through to implement the SST to help little Johnny.

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, January 31, 2020

How To Exempt Your Child From Statewide School Testing


By Michelle Ball, California Education Attorney for Students since 1995

As we all know, our kids are required to take state mandated educational tests, such as the CAASPP (California Assessment of Student Performance and Progress), to evaluate where they are in relation to grade level standards.  Most parents have their kids participate.  However, parents may exempt their child from these tests, and have the right to, if they take a few simple steps.

First, why would a parent EVER want to exempt their child from state tests?  There are many reasons:

a)  They feel their child's self-esteem goes down after they see their scores or after the testing sessions, due to confusion.
b)  They don't want their kid to have to endure lengthy and grueling testing.
c)  They don't see the value in the testing.
d)  They just don't want them to take any more government sponsored evaluations.
e)  Other reasons.

So, what do they do about it?

Parents are supposed to be notified annually their child will particiapte in state testing (see 5 CCR-California Code of Regulations §852), and should also be notified of their right to opt out of these tests.  Often this notification will be in the school handbook or in other general school communication.


Notwithstanding any other provision of law, a parent’s or guardian’s written request to school officials to excuse his or her child from any or all parts of the assessments administered pursuant to this chapter shall be granted.

Per the state regulation, 5 CCR§ 852(c):

A parent or guardian may annually submit to the school a written request to excuse his or her child from any or all parts of any test provided pursuant to Education Code section 60640 [CAASPP] for the school year. If a parent or guardian submits an exemption request after testing has begun, any test(s) completed before the request is submitted will be scored and the results reported to the parent or guardian and included in the pupil's records. An LEA [local education agency] and its employees may discuss the CAASPP assessment system with parents and may inform parents of the availability of exemptions under Education Code section 60615. 

These laws give parents the right to pull their children from participation in the CAASPP assessment system.  

To achieve the withdrawal, the school or district can be contacted to see if they have an excusal form, or the parents can simply write a letter citing that they are excusing their kids from the testing.  Citing the above laws in the letter also couldn't hurt. 

Parents need to follow up to ensure this is actually implemented, as I have seen some teachers not get the message prior to testing and an excused child could be subjected to testing improperly.

Students should be given alternate supervision and work during the time of the testing, but should not be punished nor retaliated against due to refusing to be tested.  

Parents may be pressured to withdraw their excusal, but can stick to the excusal regardless and give their kids a break from hours of tests.

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 28, 2020

In House School Suspensions- What Rights Do Parents And Students Have?

By Michelle Ball, California Education Attorney for Students since 1995

There is a lot of focus in schools on the "big" discipline: out of school suspension (typically just called "suspension") and expulsion, and how to confront and handle these, but what about an In House School Suspension (IHSS aka IHS:In House Suspension or ISS:In School Suspension)?  What protections apply to a student put on an In House School Suspension?  

First, what is an IHSS?  An IHSS (referred to in the state statutes as "supervised suspension"- see California Education Code §48911.1) is where a student commits a suspendable act, but is allowed to physically remain on the school campus during the suspension time.  The student cannot attend their regular classes during the IHSS and it can extend from one period up to 5 days.

Parents often overlook IHSS as "nothing to worry about" as the child gets to stay at school and it does not impact anyone's schedules.  But, these "little" suspensions later need to be mentioned as a form of suspension on various college applications, depending on the college one may attend.  

Parents have rights, even with IHSS's.  Here are some rights that most parents don't even know they have:

1)  Right to telephone or in person notification st the time the the IHSS starts, California Education Code §48911.1(d)

2)  Right to written notice of the IHSS if it will go longer than one period (although the code does not say when), California Education Code §48911.1(d)

3)  Right to have an IHSS imposed only when "other means of correction" fail to bring about proper conduct.  However, IHSS would not be allowed if the student presents an "imminent danger or threat to the campus, pupils, or staff," or if an expulsion is being pursued, California Education Code §§48900.5; 48911.1(a).

4)  Right to a pre-suspension "hearing" where the student is presented with the evidence, and has the ability to defend themselves, California Education Code §48911(b).

5)  Right to be notified of the "other means of correction" attempted during the suspension "hearing," California Education Code §§48900.5, 48911(b).

6) Right to ask teachers for work, and the teachers to provide work.  If there is no work from the teachers- other work will be assigned, California Education Code §48911.1 (c)(4).

7)  Right during the IHSS to have access to "appropriate counseling services," California Education Code §48911(c)(2).

8) If the IHSS was assigned by a teacher, the parents should be contacted by the teacher to set up a conference about the suspension, California Education Code §48910(a).

9)  Right to appeal the IHSS if for a first time offense, and other means of correction were not applied (within certain parameters- not all are appealable on the first time), California Education Code §48900.5.

IHSS are not nothing.  They are lower gradients than regular suspensions, and far better than expulsions, however, they are still a black mark on a student's record and time that a student will be out of their regular classes, which may be significant if they have finals coming up or miss difficult subjects.  Parents should be aware of these and what they mean before they are thrust on their kids so they can act properly when they get that dreaded call at 1:00 on a Friday afternoon.

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, January 17, 2020

School Recess Restrictions for Discipline- Are These Okay?

By Michelle Ball, California Education Attorney for Students since 1995

Once in awhile, a parent is surprised when their child tells them they were held in during recess by the teacher, and did not get a break that day.  Unfortunately, this may be partially okay for a teacher to do, depending.  Such restrictions cannot be overused and in fact there are arguments against them entirely.  Our trouble is there are conflicting laws on this issue which create confusion.

I met with a family involved in a discipline dispute with a school district.  During our discussion, it came up that the boy who had gotten into trouble had not had any recesses for a long period of time due to continuing behavior issues.  Although this was not the main focus of our discussion, what the family reported to me was disturbing simply as this was the "new" schedule of this boy, one with NO RECESS.  Additionally, the withholding of his recesses did NOT solve his behavior issues.  This was completely inappropriate and open to challenge.  

Per California Education Code section 44807.5:


"The governing board of a school district may adopt reasonable rules and regulations to authorize a teacher to restrict for disciplinary purposes the time a pupil under his or her supervision is allowed for recess." [emphasis added]

This is the entirety of the statute.  Getting NO recess ever is not reasonable or appropriate.

To add confusion to the matter is Section 352 of the California Code of Regulations, Title 5, which states:


"A pupil shall not be required to remain in school during the intermission at noon, or during any recess."

This regulation seems clear, but conflicts with the authority given in section 44807.5 to restrict recess.  Both laws seem to work against each other.  It is confusing to say the least.  Parents just need to do the best with what they have.

Many districts have policies on recess and recess restrictions, so parents need to start there.  What do their policies say?  If they say "no recess or lunch restrictions" the argument should be over. 

No kid should be kept in from every recess nor should they be kept in an entire period of lunch.  Doing so can be challenged by bringing up the above regulation disallowing this.  If the District brings up  §44807.5 the argument would then exist that holding children in all recess or all lunch is unreasonable and does not comply with §44807.5.  Youths need to get out of the classroom to have a break, run around, and just interact socially with other kids. 

Additionally, if such restrictions are occurring, the school may effectively be put on notice that they need to take action to address the issues.  A Student Study Team (SST) meeting, behavior assessment, or other actions could be in order.

School is not only about academics, but is also about socialization, exercise, life, and fun.  It should not be such that it becomes a prison where a student never gets let out of the cage. That would hardly be beneficial for anyone


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
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Please see my disclaimer on the bottom of my blog page. This is legal information, not legal advice and no attorney-client relationship is formed by this posting, etc. etc.!  This blog may not be reproduced without permission from the author and proper attribution of authorship.

Published 4/5/11, updated 1/17/20