Wednesday, December 3, 2014

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

By Michelle Ball, California Education Attorney for Students since 1995

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

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

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

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

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

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

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

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

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

Website: http://www.edlaw4students.com/ 
Blog: http://edlaw4students.blogspot.com/ 
Twitter: http://twitter.com/michelleaball 
Youtube: http://www.youtube.com/user/EdLaw4Students Facebook:https://www.facebook.com/pages/Law-Office-of-Michelle-Ball/191273330901857 [please like my office on Facebook, subscribe via twitter and email, and check out my videos on Youtube!]

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

Tuesday, September 30, 2014

Records Rights In California Community Colleges

By Michelle Ball, California Education Attorney for Students since 1995

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


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


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


Here is the exact language of the section:


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

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

Best,

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

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

Monday, September 8, 2014

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

By Michelle Ball, California Education Attorney for Students since 1995

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

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

"Hazing" is defined as:

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

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

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

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

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

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

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

Best, 

Michelle Ball
Education Law Attorney

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

Website: http://www.edlaw4students.com/
[please like my office on Facebook, subscribe via twitter and email, and check out my videos on Youtube!]

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

Wednesday, September 3, 2014

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

By Michelle Ball, California Education Attorney for Students since 1995

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

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

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

Costs of Special Education?

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

Benefits of Special Education?

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

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

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

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

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

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



Tuesday, August 26, 2014

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

By Michelle Ball, California Education Attorney for Students since 1995

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

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

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

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

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

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

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

Website: http://www.edlaw4students.com/
[please like my office on Facebook, subscribe via twitter and email, and check out my videos on Youtube!]

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



Tuesday, July 29, 2014

Appealing A School Expulsion: When Does Filing Make Sense?

By Michelle Ball, California Education Attorney for Students since 1995

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Friday, June 13, 2014

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

By Michelle Ball, California Education Attorney for Students since 1995

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

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

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

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

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

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

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

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

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

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

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

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

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

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



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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.