Tuesday, July 29, 2014

Appealing A School Expulsion: When Does Filing Make Sense?

By Michelle Ball, California Education Attorney for Students since 1995

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Friday, June 13, 2014

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

By Michelle Ball, California Education Attorney for Students since 1995

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

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

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

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

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

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

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

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

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

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

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

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

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

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



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Friday, April 25, 2014

Can My Kid Be Suspended Or Expelled For Providing A Fake Drug Or Non-Alcohol?

By Michelle Ball, California Education Attorney for Students since 1995

Would you be surprised if you received a phone call stating that your son/daughter was being suspended or expelled for providing a "drug" to another student?  What if later it turns out not to be an illegal substance at all, but rather your son/daughter pretended it was?  Or, maybe this student just "possessed" the fake-drug but did not sell, offer to sell or provide it to another?  Can either situation form the basis for a suspension or expulsion?  

Per Education Code section 48900 (c) and (d), students may be suspended or expelled if they:

1)  Possess, sell, use, or furnish a controlled substance, alcoholic beverage, or intoxicant of any kind, or
2)  Sell, deliver or furnish any of the above, or
3)  Sell, deliver or otherwise furnish "another liquid, substance, or material" and represent that item as a prohibited item (#1 above).

This is very interesting language.

What is says is that: First, if a student possesses or uses something which is not a controlled substance, alcohol or an intoxicant, even if they say it is a prohibited substance (fake drug, fake alcohol, etc.) they cannot be suspended or expelled under § 48900 (c) or (d).  For example, they have oregano and tell others they have marijuana when actually they do not.  So long as they do not give or sell that substance to another and represent it as marijuana (or some other improper substance), these sections would not apply.

Second, "offering to sell" is not listed as forming a basis, alone, for discipline, without something exchanging hands.  An actual sale/provision of a real or fake prohibited item has to take place for it to be suspendable or expellable under these code sections.  Keep in mind, a school may still try to suspend/expel under another code section, such as "disruption/defiance" (48900k).  

Third, if a student gives another student a "fake" drug or legal substance but represents it as a controlled substance, alcohol or intoxicant, this is a suspendable or expellable offense.

Additionally, per a different section, Education Code §48915, sale of a controlled substance remains a mandatory expulsion offense, and possession of a controlled substance will get a mandatory expulsion recommendation (except for the first possession of less than one ounce of marijuana and/or if the student possesses his own medication). 

Even with such seeming "clarity," parents may still be forced to defend their child from an unsupported recommendation for suspension or expulsion, as there can be confusion over the Education Code and its application.  In fact, the exact language of the Education Code is usually shortened on suspension forms. Language can also be misunderstood although seemingly clear.  This unfortunately causes heartache for thousands of kids and parents alike.  Such is the public school system!  When that happens, the best recourse is to seek legal help and advice.

Best,

Michelle Ball
Education Law Attorney
LAW OFFICE OF MICHELLE BALL
717 K Street, Suite 228
Sacramento, CA 95814
Phone: 916-444-9064
Fax: 916-444-1209
Email: help@edlaw4students.com
[please like my office on Facebook, subscribe via twitter and email, and check out my videos on Youtube!]


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

Monday, February 24, 2014

Bring An Attorney To War: When Should You Drag An Attorney To Your Child's IEP?

By Michelle Ball, California Education Attorney for Students since 1995

Lately it seems not a week goes by that I don't accompany multiple families to IEP meetings (IEP: Individualized Education Program).  My clients find great value in attorney advocacy for their children.  When should you bring an attorney to an IEP meeting?  When you are done being spun in circles by your child's school and/or wondering whether your child is receiving appropriate services to meet their unique needs.

IEP meetings can be confusing, tough, and yet, are rather important to a child's education and life.  A student's life can change for better or worse with a well written IEP and proper services.  This is because the purpose of the IEP meeting is the CHILD and their EDUCATION and meeting their UNIQUE NEEDS in the school.  If the IEP is unclear, wimpy or does not address all areas of need, well, the child is being let down and somewhat thrown to the wolves.

Parents also are, whether they know it or not, warring over a limited pot of money (school funds) and the odds always favor the house, aka the school, not the child.  Bringing an attorney is like bringing a big scary dog which the school is afraid will be unleashed on them.  No, I am not a dog, but you get the idea.  Attorneys can make school and districts lives difficult, and no one wants things to be difficult.

Think of IEPs this way: you are going to war, ALONE.  No actual physical weapons are allowed.  So this war involves you, inexperienced, puny and weak, against a bunch of full-time paid warriors (teachers, administrators, assessors) who are united, and have lots of experience in war and winning.  Who is going to win?  Well, unless you are a genius or can cheat, it is likely you won't.  The attorney can help you even the odds.

Schools and IEP meetings seem like fluffy nonthreatening places, but the truth is, they determine the fate of millions and your kid is just a number.  For your single, most important person, your child, the odds of helping them to succeed at school need to be raised.  Bring an attorney to your next war: the IEP and give your child a better chance for a successful educational future.

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

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

Thursday, January 16, 2014

How To Prepare For And Write Enforceable 504 Plans

By Michelle Ball, California Education Attorney for Students since 1995

A 504 Plan is a key document for disabled students who may not qualify for special education.  However, drafting these plans can be confusing and execution flawed due to lack of clarity.  As such, it is critical that parents know how to develop a proper 504 plan with their school.

A student's 504 Plan is embodied in a written document developed at a "504 meeting" between school staff and parent(s), which classroom teachers and school personnel will thereafter be required to execute.  The purpose of a 504 Plan is to list accommodations to be implemented, which will assist the disabled student to access their education equal to peers.  A well-written 504 plan can truly make the difference between success and failure in school.

What is important in a 504 plan?  How does a parent know the plan is "good" and will help their child?  This will depend on many different factors, not the least of which is the student involved and his/her unique needs. Usually when I review 504 plans developed between a parent and school, they are extremely inadequate, often consisting of only preferential seating, vague statements, and requirements for the parent, not the school.  As such, they can be difficult to enforce and may be wholly inadequate for the student.

Some guidelines I use in developing 504s are as follows:

1)  Requested Accommodation List:  Prior to a 504 meeting, a list of accommodations the child needs to access the classroom/learning/school should be developed.  This list is valuable as a starting point and will help make the 504 meeting more productive for all.  This list can be provided by parents/their attorney to the school, in advance of a 504 meeting, to ensure that all requested items can be addressed.

2)  Specific Accommodations:  Accommodations should be as specific as possible, so they are enforceable and verifiable.  If an accommodation is not written clearly, it may be difficult to verify if the accommodation is being implemented and easy for that accommodation to be ignored.  Phrases such as "as needed" by themselves can allow the teacher to determine when an accommodation is necessary, which may be never!  An accommodation never implemented is valueless.  Instead, more specific terms should be outlined, such as "one time a class period "or "three times every 60 minutes and as needed." The language will be fact/student dependent, but the clearer the language, the better for ALL.  

3)  Tailored To This Student:  Accommodations must be specifically tailored to the student and his/her needs.  What does the student actually need in the class, after class, on breaks?  For example, if the student cannot take notes there could be an accommodation that teacher notes and overheads will be provided electronically at the beginning of the month.  Difficulty focusing in class?  There could be an accommodation for subtle redirection/check-ins by the teacher at specific intervals.  Can the student not write down assignments?  There should be a home-school communication system set up with weekly email to provide the assignments, upcoming tests, etc.  

4)  Legibility:  Often schools try to squish a 504 and accommodations into a pre-printed form. However, this may mean accommodations are shortened, placed in size 4 font, or otherwise hard to read.  An attachment page or simply a more spacious 504 document may be developed so anyone picking up the 504 can read it quickly and easily without squinting.  If an accommodation is unreadable, or takes too long to decipher, a teacher may skip it, which will ensure it won't be implemented.

5)  Accommodations Not Limited:  Speaking of a pre-printed form, parents should know that they are not limited only to accommodations on a district's form, but may develop accommodations beyond the cookie cutter provided.  

6)  Accountability:  Is there someone who is accountable for implementing each accommodation, such as the teacher, administrator or counselor?  The parent can volunteer for some accommodations, e.g. originating an email to the teachers weekly to get a list of any missing assignments, upcoming due dates, etc.  However, responsibility for execution should mainly fall on school personnel's shoulders.

7)  OCR:  Know what the Office for Civil Rights is and how to file a complaint with them in case the 504 is not implemented and/or the school refuses certain critical accommodations.

8)  Attorney:  Know a good attorney who can review the 504, help with an OCR complaint, express your concerns to the district and even accompany you to your next 504 meeting (can be very helpful for compliance and obtaining a clear 504).

504 Plans are very important and powerful documents.  Don't underestimate the value of a well-written, legally enforceable plan, to your child's future and school success.  There is only one shot at their education and falling behind can be problematic.  As such, ensure your child's 504 Plan is specific, executable, and has the accommodations they need to succeed!

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

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


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

Monday, December 9, 2013

Is School Expulsion Really That Bad?

By Michelle Ball, California Education Attorney for Students since 1995

When parents of California schoolchildren are faced with a potential school expulsion, numerous thoughts run through their minds, such as:  "What will happen to Johnny if he is expelled?  Where will he go to school?  What will happen to his future plans?"  Ultimately, with a long process ahead of them, exclusion from the regular school during the wait and a scary expulsion hearing hanging over their heads, many just give up or give in without thinking through potential consequences.

During this process, parents may also ask "DOES SCHOOL EXPULSION REALLY MATTER?" 

Parents may believe that expulsion is only a "short break," and that Johnny will soon return to school.  It is "no big deal" if he attends the local continuation school and goes back to his elementary, junior or high school next year.  However, return to school cannot be guaranteed (if the expulsion terms are not met, Johnny may never go back to his regular school), and long term impacts may occur.  

If you want the best for your child and his/her future, school expulsion does matter for the following reasons:

1)  PRIVATE COLLEGES APPLICATION AND ENTRANCE:  School expulsion comes up on undergraduate college applications.  For example, see the College Common Application (now completely electronic), for private universities, which asks specifically about any prior discipline, suspension and expulsion.  The last time I saw the application on paper, it had a form to be completed by school staff, which asked them about a student's discipline history.

2)  PUBLIC COLLEGE APPLICATIONS AND ENTRANCE:  Public colleges may also ask about discipline infractions when a student applies and may take past expulsions, suspensions or other discipline into account.  For example, a University of South Carolina official commented that their college may take discipline into account if they are considering equally qualifying candidates and don't know who to pick.  Community colleges will not likely care, while a University of California or CSU (California State University) campus might.  The higher the rank of the school, the more likely discipline will matter.  See comments from various college officials here on their view of school discipline in the college application and admission processes.

3)  POST-GRADUATE PROGRAMS:  Potential graduate or doctoral students may also be asked about past discipline, which may have an impact on being accepted.  It can be presumed that the impact of expulsion (or any discipline) will vary depending on the institution and program the student is attempting to enter.

4)  CAREERS/LICENSING:  Even career paths may be influenced by past discipline.  For example, when I applied to become a member of the State Bar of California, the licensing agency for attorneys, I was asked about past school discipline.  I have had clients inform me that they believed expulsion would influence the ability to enter certain branches of the military, join the FBI or become a police officer [note: I have not validated these reports].

5)  BAD PLACEMENT WHEN EXPELLED:  Where the student will be placed, unless negotiated pre-hearing, usually will be a less savory place, such as a school district and/or county-run continuation or community school.  

6)  CLASSES/OPPORTUNITIES LOST, GRADES & CREDITS:  If expelled, a student may no longer be able to take that "Japanese 3," or "Advanced Placement History" class they were enrolled in.  There are also credit and grade issues which come along with the process, due to the student's absence pending hearing and/or the school's lack of provision of adequate work.  Resulting credit deficiencies may also impact the date the student can graduate.

7)  PRESUMED GUILT:  A student expelled may be looked upon negatively not only by his peers and community, but also by school personnel upon his or her return.  The worst impact of this is that the student may become a sort of "whipping boy" who is the first one blamed for wrongs.  This accompanied with presumed guilt (due to past expulsion) make for a dangerous position for the student at school.

8)  RETURN TO LOCAL SCHOOL?  If a student breaches the terms of an expulsion agreement, they will not likely be returned to the regular (comprehensive) school environment.  Even if they comply with all terms, there is no guarantee they will return to the former school or their local school.  I have seen a school refuse to accept a student back who was previously expelled.

As can be seen, parents should not just give in and sign proposed stipulated (agreed) expulsion agreements or show up at the expulsion hearing thinking the panel will feel merciful, as this is not often the case.  The potential harm to the student and their future is too great.

Best,
Michelle Ball

Education Law Attorney
LAW OFFICE OF MICHELLE BALL
717 K Street, Suite 228
Sacramento, CA 95814
Phone: 916-444-9064
Fax: 916-444-1209
Email: help@edlaw4students.com
[please like my office on Facebook, subscribe via twitter and email, and check out my videos on Youtube!]



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

Wednesday, November 20, 2013

Students And Parents Can Be Liable For Harmful Lies About School Employees

By Michelle Ball, California Education Attorney for Students since 1995

Have you ever been lied about and those lies hurt you in some way (e.g. lost friends, lost job, expelled)?  Negative statements about ourselves, particularly falsehoods, make us hopping mad.  Can minors who spread false statements be liable for their statements?  Yes.

This week (third week of November 2013), a Santa Clara County jury reportedly found several young girls (10 and 11 years old at the time of the incident(s)), along with their parents, guilty of defamation for lies they told about a private school teacher, John Fischler, alleging he molested them and peeked in their bathroom. One girl will have to pay punitive damages as she spread the lies with malice aforethought (basically intention to harm).  The other students and parents reportedly got off with a mere $362,653 bill to the teacher, who had to defend against the allegations and had his workplace poisoned against him.

This is quite a story, and the attorney for the girls mentioned that a "chilling effect" might occur from this verdict, which could prevent true reports from being lodged, for fear of lawsuit.  It is true: some people may not come forward due to fear.  However, factual statements are protected. 

Lying in the school setting does happen.  For example, I have seen young men who were falsely accused of wrongs by ex-girlfriends, or scorned lovers (and their friends).  The false communications caused recommendations for expulsion for sexual harassment and battery.  

We all remember the false accusations against Duke Lacrosse team members in 2006, where the men were falsely accused of rape.  Ultimately, the men were cleared, but not without over a year of struggle and infamy (negative) which will never go away.  The lies in that case led to the Lacrosse coach being forced to resign, and ultimately the disbarment of the District Attorney for his role in the matter. 

It is hard to know when a student is telling the truth or not, but having reliable statements is extremely important in many contexts.  In expulsions and/or student discipline matters, student statements are taken as evidence of wrongdoing, can lead to searches, a bad impression about the student and unfair discipline.  In expulsion hearings, student statements are allowed in as evidence, even hearsay statements (e.g. he said she said with no direct knowledge).  Often witnesses do not testify at an expulsion hearing, while their written statements may be accepted as evidence.  This is problematic for any student accused and the attorneys who defend them.

Student statements can also get teachers or school staff in trouble via the uniform complaint or other complaint process.  A student may lodge a complaint against staff members for alleged wrongs, which are to be investigated by the school and/or district and may make it up to the school board level.  If the statements are false, only trouble can follow.

Some good information about defamation (harmful false statements) and its subcategories of  libel (written statements) and slander (verbal statements) can be found here.  

Parents and students need to understand that any and all complaints or statements to schools should be factual.  It is risky to do otherwise.  

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

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

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



Wednesday, November 13, 2013

School Suspension Or Expulsion For Controlled Substances

By Michelle Ball, California Education Attorney for Students since 1995

A frequent situation facing distressed parents is when their child is placed up for suspension or expulsion for possession or sale of a controlled substance, aka drugs.  Here are the basics.

What is a controlled substance?  These are generally defined in the California Health and Safety Codes §11053-§11058.  You can read this code at your leisure but it covers all the usual suspects, such as the typical illegals: cocaine, cannabis/marijuana, heroine, ecstasy, speed, etc., and prescribed substances, such as Ritalin, Codeine, Oxycodone and other medications.

In a nutshell, students are prohibited from carrying, storing, ingesting, passing along, or selling (etc.) controlled substances.  If a student is caught doing any of the above by the school, they will usually, at a minimum, be suspended.  They may be placed up for expulsion, even on a first offense.  Punishment could be lessened if a student merely possesses a controlled substance for which they have a prescription, in an amount that does not look suspicious (e.g. not 60 loose pills when they only need 1 a day).

If a student sells a controlled substance, the school has no discretion and must put the student up for expulsion. The student must be expelled if the facts are proven (which is a discussion for another day).  There may still be discretion in what type of expulsion a student receives even in these dire circumstances (drug sales).

A good attorney can try to negotiate the least possible punishment and may open the school district's eyes to some possibilities they would never think of in a drug situation.

What are drug sales?  In loose terms: money or other item in exchange for a controlled substance, whether the student takes a profit or not.

I frequently have parents in my office saying their child did not sell drugs so they should be able to defend the expulsion easily.   Here is the situation (their child is Student B):

Student A gives money to Student B
Student B gives money to Student C
Student C takes money
Student C gives drugs to Student B
Student B gives Student A the drugs
Student B does not keep money or drugs

Is Student B selling?  What do you think?

Student B "Did not sell!" the parents say.  "He did not profit so this is not a sale." The arguments around this are extremely weak as the student did exchange drugs for money.  Such conduct can warrant a mandatory expulsion recommendation for drug sales.

Criminal charges may also not be far behind when the school district reports the alleged sales to the police.

The bottom line is that parents need to talk to their kids about not buying, selling or brokering sales of controlled substances, or they could have a serious reckoning coming.  Drugs are usually pretty easy to get (or so I hear) in our schools, and the peer pressure to "help" someone find drugs, to ingest this or smoke that, can be tremendous.  High school is not forever.  The future awaits and it may be seriously tarnished if expulsion moves forward.

Best,

Michelle Ball
Education Law Attorney
LAW OFFICE OF MICHELLE BALL
717 K Street, Suite 228
Sacramento, CA 95814
Phone: 916-444-9064
Fax: 916-444-1209
Email: help@edlaw4students.com
[please like my office on Facebook, subscribe via twitter and email, and check out my videos on Youtube!]


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

Wednesday, November 6, 2013

Minimum Physical Education Requirements in California Schools

By Michelle Ball, California Education Attorney for Students since 1995

Did you dread exercise as a child or did you long to run and play kickball during math or English instruction? It seems that the time allotted for Physical Education (PE) has dwindled over the years, but California students still have a right to receive PE on a daily basis (unless exempted).

PE may seem like an obvious need: of course students should be taught baseball, basketball, how to run fast or just play with a team.  It is not as obvious as you may think.  Rather than ramp up PE to fight obesity, America chose other routes, such as attacking sugary drinks via taxes, attempts to stop the sale of extra large sodas, blame on fast food, while at the same time PE and children's activity levels dwindled over time. With the crisis of deteriorating schools, dwindling test scores and America falling behind the world in education, PE became something easy to cut out of school curriculums.  However, PE is written into state law as a mandatory part of our children's educations.

In first through sixth grades, California Education Code §51210 requires 200 minutes every 10 school days: twenty minutes a day.  A parent even filed suit on the issue when his district cut PE minutes to 120 minutes every 10 days in Doe v. Albany Unified School District.  The parent won, and the court of appeal validated §51210 and its PE mandate.

For students in seventh through twelfth grades, the amount is even higher, with a 400 minute every 10 day requirement outlined in California Education Code §51222.  If a physical fitness test is passed in grade 9, a student may be exempted for up to 2 years of PE in tenth through twelfth grades.  However, alternative physical education elective classes must be made available if the student is not going to participate in traditional PE.  

Students may get out of some PE hours to engage in Drivers Education (Education Code §51222), if they are involved in sports (Education Code §51242), if they attend school less than half the normal time,  if they have a physical disability (Education Code §51241) and perhaps for other reasons.

The legal minimum for graduation from high school is two PE courses (see Education Code §51225.3 (a)(1)(F)).

Have you checked whether your child's school is meeting these legal minimums?  If not, an investigation into the situation may be needed.

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


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

Wednesday, October 16, 2013

Bullying And Cyberbullying - You Must Report It To The School

By Michelle Ball, California Education Attorney for Students since 1995

Bullying at school is certainly in the news.  Just this week another twelve year old leapt to her death after allegedly being bullied for a year.  This is a tragedy.  Will the school district be liable?  We shall see.

The fact bullying and cyberbullying occur alone are not enough for school districts to be liable.  Rather, a school or district official who has the power to address bullying must have actual knowledge of the bullying and/or harassment which is occurring.  If bullying goes on but no one tells an administrator who can do something about it, or no official witnesses the bullying, liability may not lie (see the U. S. Supreme Court cases Davis v. Monroe County  Board of Education and Gebser v. Lago Vista Independent School District).

Bullying can have dreadful effects.  It can lead to suicide, murder, isolation, failures in school and other negative impacts.  As families may not have access to bullies, the schools and police often must be involved for bullies to stop. However this presumes parents KNOW about the bullying in the first place.  This may not be the case. 

A bullied student may not tell their parents they are being targeted due to embarrassment or thinking they can handle it on their own.  They may even believe they deserve the treatment due to a diminishing self-esteem.  They may feel worthless and trapped in a cycle which will never end.  Do you remember being a teenager?  Didn't it seem like childhood would never end and that you knew and could handle everything yourself?  That your parents knew less than you?  Today's youth go through the same thing.  Because of this, parents MUST get nosy and investigate what is going on in their child's life, on-line and off. Internet sites like Facebook, Twitter, Instagram, etc. need to be reviewed to ensure nothing untoward is happening.  Cell phones need to be checked. Inquiries need to be made before it is too late.

Once bullying is discovered, it needs to promptly be reported to school officials via the district/school official bullying process (see California Education Code §234.1 which requires districts to have a complaint and investigation process).  Once a report is made, it then needs to be followed up on to ensure that something effective is done.  

Schools can investigate situations, interview kids and potential witnesses, impose in-house or out of school suspensions, involuntary transfers and even expulsions depending on what they find.

In most situations, reports of bullying will result in action by the school or school district.  If an inadequate or no response issues, parents need to seek legal help to solve their issues before the bullying leads to tragedy.  Parents, please get into your kids' lives, before they end up as headlines in the daily news due to bullying of which you were never aware.


Best,
Michelle Ball
Education Law Attorney
LAW OFFICE OF MICHELLE BALL
717 K Street, Suite 228
Sacramento, CA 95814
Phone: 916-444-9064
Fax: 916-444-1209
Email: help@edlaw4students.com
[please like my office on Facebook, subscribe via twitter and email, and check out my videos on Youtube!]



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

Friday, September 27, 2013

The Suspension Extension Meeting And What To Expect

By Michelle Ball, California Education Attorney for Students since 1995

After a student is suspended from school for a serious offense, his or her parents may be informed that another meeting will take place, usually at the school district or with district officials.  Sometimes schools wrongly call this an "expulsion hearing," which worries parents unnecessarily, sort of like when your child is out driving your car and a cop calls, asks if you own that car and hangs up without telling you why they asked that scary question...  Rather than a car wreck, this first meeting, (unless formally noticed as an expulsion hearing with written notice mailed out 10 days prior) is only a suspension extension meeting

A suspension extension meeting occurs during the initial suspension time period, (the first 1-5 days the student is out of school on suspension), to prevent the student from returning to school when the initial suspension concludes.  This meeting usually only occurs when the Principal has already recommended expulsion and it is moving forward to hearing.  [Please note: "suspension extension meeting" is not its "official" name and it can go by various titles.]

Here is what should happen at a suspension extension meeting:

1)  District administrator and family meet to discuss the situation.  A school official may also be there.
2)  Administrator is supposed to make an actual determination as to whether the:

"Presence of the pupil at the school or in an alternative school placement would cause a danger to persons or property or a threat of disrupting the instructional process."  [California Education Code §48911(g)]

3)  If the student does not fit the above, their suspension is not supposed to be extended and they can be placed back at school or at an alternative site.  

Usually what occurs is that the child and family are told:

1)  Your child is up for expulsion.
2)  He or she must stay home until the hearing.
3)  The hearing will be scheduled and/or the expulsion hearing is on X date.
4)  No determination is made regarding dangerousness, at least not with the parents input.
5)  The family may also be handed any evidence gathered, but this does not always occur. 
6)  Sometimes the family is handed an agreement and pressured to sign it.  Parents are wise to take the agreement and review it with legal counsel. 
7)  Sometimes arrangements are made for attendance at an alternative site/program.

A non-dangerous/non-disruptive student should be moved into an alternative educational environment for an "education" while the expulsion hearing is pending. However, sometimes administrators assert, based on another Education Code section (§48913), that no work has to be provided during suspension.  I take strong issue with such a statement.  The legislature never intended actually non-dangerous students up for expulsion to sit out of school for up to 30 schooldays doing nothing but twiddling their thumbs. 

The one thing this meeting is sometimes good for is negotiating outcome, but to accomplish a decent outcome, usually legal counsel needs to be involved.  It is not often that I see administrators offering up good deals at these meetings when legal counsel is not there.  Rather, I see parents arrive at my office with cruddy deals for the worst possible punishments which they were pressured to sign or else "go to hearing!"  Sometimes hearings are necessary when the only other option is terrible.  

Hope this clears up the muddy waters a bit. 

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


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

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


Tuesday, August 20, 2013

How To Negotiate A Better School Expulsion Outcome

By Michelle Ball, California Education Attorney for Students since 1995

Expulsions from school unfortunately occur more often than one might think. Parents who believe life is going along smoothly with their children, may find themselves on the end of a phone call with a Vice Principal telling them to come pick up their child as they are up for suspension.  Upon arrival and discussing the situation, they may also be told their child is up for expulsion and the matter is going to hearing.  

Is there any hope for resolution before the dreaded expulsion hearing?  There may be.

Usually, parents with a child up for expulsion wait for the expulsion hearing to take place to plead their case, believing the expulsion hearing panel and/or hearing officer will believe them and have mercy.  Unfortunately, the expulsion panel usually takes a limited view of their punishment options and may feel they have no choice but to expel a student irregardless of a parent's plea and even on the slimmest of evidence.  

Most parents do not know there are other options than proceeding to an expulsion hearing, such as negotiating the discipline outside the hearing process via "stipulated agreement," (aka "stipulated expulsion"- basically a written expulsion agreement). 

These stipulations may be offered by a district, but usually, if a stipulation is offered with no parent request, they are poor offers for the child.  If one is offered and the parent thinks it is too harsh, and/or if no offer is forthcoming, a parent can step-up and try to better the situation.

A parent might do this by:

1)  Obtaining all evidence in the matter plus all student records, and
2)  Reviewing all, and
3)  Writing up a letter explaining who their child is and a factual summary (written honestly, but favorably for the child), and
4)  Including in the letter a request for resolution pre-hearing with a specific suggestion of punishment which should be tried instead. 

Such a letter could move the matter toward a resolution which may be more tailored to what the family wants.   

Some possible alternatives to "full" expulsion could be:

a)  A behavior contract with return to school, or 
b)  An involuntary transfer to another regular (aka comprehensive) school in the district, or
c)  A suspended (probationary) expulsion with minimal terms, or
d)  Some other creative alternative (the sky is the limit).

Parents can route their request to the person in charge of the expulsion process as a first step and can try to address the Superintendent as well (not always possible). 

The bottom line is as our forefathers said, "It can't hurt to ask," which is as true as ever in expulsion matters.  And, even if a parent fails in their quest, they can still go to their expulsion hearing.  

As a lawyer, I know also that sometimes districts will not listen to parents without an attorney.  So, some parents may still want to bring in legal help from the beginning, or if self-advocacy fails.  But, even without legal help, parents can try on their own to better their child's situation.  You never know what positive results might occur.

Best,
Michelle Ball
Education Law Attorney
LAW OFFICE OF MICHELLE BALL 
 717 K Street, Suite 228 
Sacramento, CA 95814 
Phone: 916-444-9064 Fax: 916-444-1209 
Email: help@edlaw4students.com
Website: http://www.edlaw4students.com/
[please like my office on Facebook, subscribe via twitter and email, and check out my videos on Youtube!]

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