Thursday, May 5, 2011

School Suspension and Expulsion Bases: Fighting and Threats of Harm

By Michelle Ball, California Education Attorney for Students since 1995

There are a multitude of bases for student discipline as described in my earlier blogs.  One of those bases involves fighting (aka "mutual combat"), threats, and/or physical violence to another.  Such conduct may or may not get a student suspended or placed up for expulsion.

Per California Education Code 48900(a)(1) for a student to be suspended or expelled for this type of conduct, they must have:

- Caused, attempted to cause, or threatened to cause physical 
injury to another person, or
- Willfully used force or violence upon the person of another, 
except in self-defense.

But, what does this mean in "real life?"  It means student fighting, threats to hurt someone (even vague ones), and responding in a physical way when attacked by another student, can get a student punished.

Fighting is obvious as far as a basis for discipline, but what about defending yourself?  Although self defense is listed as an excuse which should prevent discipline, in real life (e.g. at schools), self defense is not often accepted as a reason to NOT punish, unless a student who is assaulted runs away to the office, to an adult, or curls up in a fetal position to take the beating...!  Parents, I am not being sarcastic!

For example, if a student is hit by another student, and hits back, the schools usually deems this "mutual combat," and suspends both kids, regardless of who started it.  The insertion of the words "except in self-defense," in the Education Code often do not register on a school's radar and they suspend any student  if they engage in any form of physical altercation, even if the student has no other choice (e.g. they are attacked).  However illogical this sounds, this is the standard that I have seen applied since I entered this business.

There are times when schools WILL allow the self defense "excuse," for example, when it would be glaringly obvious even to a 3 year old (no offense against 3 year olds), such as with a gang beating of a kid, but for the most part in a two student battle, both will be punished.

Additionally, the mere "threat" of physical harm can get a student punished.  A "hit list" against students or teachers, threats to students or school personnel on Facebook or other social media networks, threatening or violent essays, and even drawings of guns and destruction can land a student in the discipline hot seat.  First Amendment free speech issues may arise, but schools usually ignore such rights if they exist at all.

Whether a student actually will be punished for such conduct each time is up to the school.  Usually in the student handbook will be a grid with a list of punishments and the possible punishment for each.  With fighting, or other physical harm, the schools will usually allow suspension OR expulsion even on a first offense.

In the "old days," students could probably defend themselves for real and not be suspended, but in our "zero tolerance" world, this is not the case.  Students are expected to take a beating or run away so they won't be in trouble.  This does not always fit when a kid is attacked.  Alas, no one ever said that school discipline was logical or reasonable, and I would certainly never make that claim.


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
Website: http://www.edlaw4students.com/
Please see my disclaimer on the bottom of my blog page [http://edlaw4students.blogspot.com/]. 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.

3 comments:

  1. My daughter was expelled for a first offense smoking marijuana during lunch time, they also cited her for furnishing. I had to appeal to the county board of education who over turned the school boards decision, saying the students rights had been violated due the unfounded expulsion. Do have any legal right to go after the school district to cover my attorney fees?

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  2. I was being bullyed at school and I had told an administraitor about it and it was not taken care of and had continued for another day.So finally I decided to stand up for myself and go to school and fight the girl the next day she did not close fist hit me back at all she kicked,choked,and scratched me which was documented and I have photos of the marks.I was expelled for fighting my first offence was that the right disciplinary action?

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  3. What about TEACHERS defending themselves? No weapon but student clearly may cause injury to self, the adult or others in acting out. Mock Karate moves which could cause injury, a non-violent response and containing the student's movement is prohibited?

    ReplyDelete

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