Monday, January 31, 2011

You Must Help Your Kids With Their Science Homework

By Michelle Ball, California Education Attorney for Students since 1995

Last week, the National Association of Educational Science (NAES) released the test results for many of our nation's children showing a distinct weakness in the sciences.  For example of 300 possible points, the average score was between 147-153.  If graded in the traditional way, this would be an "F."

You can see the report here:  http://nationsreportcard.gov/science_2009/

The United States Department of Education response is here http://www.ed.gov/news/press-releases/statement-us-secretary-education-arne-duncan-release-naep-science-report-card and certainly does not make me feel more secure.

This low score evidences a few things: 1)  School instruction is not enough to advance in science, 2)  Parents need to step up and help their kids with their science homework, and 3)  Parents need to stimulate an interest in science outside the classroom via home science projects in which the child is interested.

Schools are like high speed trains which just keep going regardless of whether the passengers are hanging off the edges or falling off.  They do not stop.  So, if a student misses even one concept, e.g. in math or science, but the class has moved on, that student may never understand that concept and/or other items connected to it.  With science that can be a killer.

One area where parents could help is to follow up on items missed on science tests or homework.  If a student misses anything, parents must follow up and work with their child until they understand the item once and for all.  The schools don't take adequate time to ensure that the concepts missed are understood and parents have to fill in the gaps.  Parents can help merely by noticing what the kid got wrong (not just chastising them for a low grade) and helping them understand.

Another area where a parent can help is ensuring a child fully understands what they are reading- and I mean specifically the WORDS.  Does the student REALLY know what that science word means?  Really?  Do they actually know what a microbe looks like, what it does, where the word "microbe" came from?

Parent help with homework and in completing science projects in which a child is interested (even if not assigned as homework) would help not just the individual student, but the country as well (it would probably raise our NAES score/grade from at least an "F" to a "D" or maybe even an "A").  The schools are not the only ones responsible for advancing kids.  We, as parents, are as well.


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/
Twitter: http://twitter.com/michelleaball
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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.

Friday, January 28, 2011

Be Careful Not To Break the Transfer Rules of the California Interscholastic Federation or You May be Banned from Playing Certain Sports

By Michelle Ball, California Education Attorney for Students since 1995

Please note, CIF rules have changed and the below is based on rules prior to July 2012.  See my new blog here on the new "improved" rules.

Sports issues are plentiful in the school arena.  A frequent issue which arises involves the transfer rules under the California Interscholastic Federation, aka CIF.

CIF governs public school sports at the high school level and in some junior high schools as well.  They write various rules and bylaws which govern how students play, who can play, and other items.  The rules can be seen here http://www.cifstate.org/governance/constitution_bylaws/index.html.

One of the most frequent areas with which my clients have trouble involve the CIF transfer eligibility rules, Rules 206 and 207.  These are important as they can prohibit a student from playing certain sports if they change schools without meeting the CIF eligibility requirements.  The rules have changed over the years, but as of this writing, the rules basically state as follows:

  • Residence for CIF purposes (sports) is established when a student initially enrolls in the ninth grade at a CIF high school/junior high school, or when they enter the tenth grade at a CIF high school when they previously attended a junior high with a ninth grade. 
  • A student's residence is where the student's parent(s)/guardian(s)/caregiver lives with whom the student lived when they established residential eligibility. In other words, if they lived with their father and mother when they entered their freshman year at a high school, they must stay with them to have residential eligibility. 
  • A student may transfer a single time prior to their third consecutive semester of attendance (usually the sophomore year) without a change of residence and still retain eligibility to play. 
  • If a student transfers high school more than one time prior to their third consecutive semester without a valid change of residence, they are ineligible to compete in any varsity level sport in which they competed at any level (even if it was not at the varsity level) at the prior school, for one year.
  • A VALID change of residence means that a student plus the entire immediate family with whom the student lived at the time of establishing residential eligibility moves with them, they abandon their prior home as a residence, and they take all belongings.
  • If a parent (e.g. mother) with whom the student lived when eligibility was established remains in the home (e.g. and the other parent moves), that residence remains the student's residence for eligibility purposes.  If the student moves to a new residence (e.g. with the father), the student loses eligibility unless they receive a hardship waiver.

Additionally, there are many items which can still prohibit a student from playing at another school even if they change residences.  For example, the move cannot be for discipline reasons nor can a move be athletically motivated.

Here is a handbook from CIF on these rules as there has been a lot of confusion and frustration with these rules:  http://www.cifstate.org/governance/transfer_eligibility/pdf/Parent%20Handbook%20%20I.PDF

These are very very important rules for parents to be aware of if they are considering a transfer as a student who e.g. played basketball at the prior school won't be able to play basketball at the new school unless the family physically moves, this was the first transfer prior to the third semester, or a CIF hardship waiver is obtained.  This can devastate scholarship hopes if a student loses their eligibility to play due to a move without a proper change of residence.

If your child is blocked from playing, they may return to their prior school (where they were eligible to play) to play sports, may request a hardship waiver, or may file a request for a CIF hearing if their hardship waiver is denied.  A panel should be convened to hear the matter.

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.

Wednesday, January 26, 2011

Yes, You Do Need An Attorney For A School Expulsion

Does a parent really need an attorney to help them resolve and/or represent them at a school expulsion hearing?  Yes, yes and yes!

Expulsions are serious matters and result in a permanent mark on the student's record which can arise later in life, such as during application to college and when attempting to get certain jobs (this even comes up when applying to be an attorney).  Additionally, once expelled, a student cannot return to their school district for a set period of time and may have to attend school in a less savory environment, such as a continuation school.  And, if an expelled student does not meet the "rehabilitation plan" terms in the expulsion, they may never return to that district.

Parents are also going up against folks who "do this for a living" who are ultimately familiar with the expulsion hearing rules and requirements e.g. for witnesses, for evidence, for procedure, and for winning.  Parents are usually new to the whole expulsion process and this is a distinct disadvantage.  Its a bit of a David and Goliath type of situation.

Parents also must not presume a district will "see reason" if they just hear their story.  I have too many times heard from parents AFTER an expulsion hearing that they "trusted" the district to "do the right thing."  Sadly, they did not and the child was expelled.  Unfortunately, appeal rights can be limited and it is more difficult to fight an expulsion after the fact than prior to it occurring.  This is not surprising as a parent must plead their child's case in front of a panel of individuals paid by the district as employees (who are usually disciplinarians).   I would not bet my money that they would naturally have mercy on a student (they don't!).

Parents need leverage as the deck is stacked against them.  Usually, the only leverage in expulsion matters is an attorney.

I recently received the following from a happy client who could not get anywhere in an expulsion matter before the expulsion panel, and even the school board, until I became involved:

“My son was expelled from the Elk Grove Unified School District for one semester. Elk Grove High recommended two semesters expulsion. I recommended dismissal based on lack of evidence and parent notification violations. I lost the case. The Expulsion Panel recommended one semester expulsion. I quickly appealed the case to the Elk Grove Board of Education. I was also allowed to appeal the two home suspensions to the school principal. During this time I hired Education Attorney Michelle Ball for legal advice. What I liked about Michelle is that I could pay for half hour and one hour sessions, which made it affordable. I would have my questions ready and she would provide legal answers and information on the education codes. She was a wealth of knowledge.
I lost my case with the Elk Grove Board of Education and the school principal upheld the two home suspensions. I then appealed the two home suspensions to the second level, which was the Student Services and Health Department. Knowing that the District would keep playing games with me, I hired Michelle to handle the second level appeal for the expulsion, which was the Sacramento Board of Education. Michelle wrote a letter to the District’s attorney (I call it the “power letter!”) informing them that I had retained counsel for the second level appeal. Shortly after the letter was sent the District dropped the expulsion. I did the research and had substantial evidence to prove that there were parent notification violations and lack of evidence to convict my son of a 48900 (c) violation, but it wasn’t until I hired Education Attorney Michelle Ball to handle my case, that my voice was heard.” - RC


Best of luck,

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
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.









Monday, January 24, 2011

True Stories of California School Expulsions

By Michelle Ball, California Education Attorney for Students since 1995

I have been representing parents and students since 1995 and often reflect on all the stories I have heard.  Some interesting ones come to mind in the expulsion arena.

For example, some years ago I met a family whose young son was up for expulsion for positioning his FINGERS to resemble a gun (e.g. the thumb and index finger) and  going "pow pow" to another student.  For this, the student was UP FOR EXPULSION.  When we went to the hearing the teacher actually went off on how scary that was.  Fingers?  What threat do they pose?  The kid was playing with another student and had no access to any weapons.  Unbelievable.  I know there are teachers out there who could explain this, but I believe this went just a tad overboard.

Another family found their son up for expulsion for having a "mental list" of potential student targets.  Now in case you don't know, a "mental list" is a list that is in someones head-- allegedly.  It is not on paper, nor is there actual physical evidence of the "mental list."  There was no evidence this "list" existed other than student rumor which was vague to say the least.  The kid had no history of violence, no evidence in the physical world of any threat, danger, anger, etc. but was placed up for EXPULSION.  This was in the days after Columbine, but that still does not excuse a recommendation for expulsion with no support and no evidence.

I have seen male students targeted by classmates who felt scorned.  For example, a girl who a boy rejected for a relationship, conspired with her friends and the 4 girls wrote similar stories of alleged harassment by the boy which were unfounded.  The school had no choice but to investigate and to "do something" as schools cannot ignore sexual harassment allegations.  The boy was placed up for expulsion based on the false allegations.  I have seen this type of scenario more than once, so boys, be warned and be careful.

I saw a high schooler up for expulsion for an internet conversation about a teacher where my client said something supportive to a student who was upset.  She ended up being recommended for expulsion.  Be warned, the internet is being monitored by schools and districts for expulsion material.

I have also seen students with a long history of discipline issues NOT put up for expulsion, while other students with a first offense were placed up for expulsion for the maximum term.

Now of course, I often resolve or negotiate these situations and solve many problems, but the mere fact that students are even being put up for expulsion for e.g. making their fingers look like a gun is startling to say the least.

Be careful out there.

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.

Wednesday, January 19, 2011

A Great Due Process Hearing Reference for California Special Education Parents

By Michelle Ball, California Education Attorney for Students since 1995

Parents of special education students who may have a dispute over services or placement for their kids must be aware of their right to file a request for a Due Process hearing, which will bring them before a mediator and potentially a hearing officer to (hopefully) get their dispute resolved.

If a parent wants to get really familiar with what due process is, how it works, what to do, etc. they should check out this great resource from the California Office of Administrative Hearings (OAH) titled simply "Understanding Special Education Due Process Hearings:"  http://www.documents.dgs.ca.gov/oah/SE/SE%20Guide%20to%20understanding%20DPH.pdf

This a great reference which can help a parent become familiar with this process and details what parents need to know to proceed.



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.

Monday, January 17, 2011

Is My Child A Truant?

By Michelle Ball, California Education Attorney for Students since 1995

Being labelled a "truant" (a pupil breaching the laws mandating school attendance) can be devastating to a family.  The process may lead to meetings with school officials or even a School Attendance Review Board (SARB) hearing with a rigorous contract imposed on the family and even court action.  This is definitely something to be avoided if possible.  As such, the basics of what makes a student into a truant must be understood by parents and students.

California Education Code section 48260 sets forth the definition of a truant as follows:

a)  Any pupil who is subject to the compulsory education laws, AND
b)  Who is absent from school without valid excuse,
c)  Within one school year for:
1)  Three full days OR
2)  Three times for more than 30 minutes during the school day OR
3)  A combination of both (#c1 or c2)

If three unexcused absences occur in one school year, and the individual is between ages 6-18 not excused from attendance (e.g. attending private school, etc.), a school district may label a student a "truant."  See section 48260 and other truancy codes here:   http://www.leginfo.ca.gov/cgi-bin/displaycode?section=edc&group=48001-49000&file=48260-48273

Districts vary on the strictness with which they prosecute students with unexcused absences.  Some districts  let students accumulate more than 3 unexcused absences without comment.  Other districts are rabid on enforcement, and jump on students immediately once the 3 unexcused absence threshold has been reached.

Once a district decides to label a student a "truant," they are supposed to notify the parent or guardian of the below.  Although notification used to be required by mail, districts now can notify parents by the most cost efficient method possible, including via email and/or telephone, of the following items:

a)  The pupil is a truant.
b)  The parent or guardian is obligated to compel the attendance of the pupil at school.
c)  The parent or guardian may be guilty of an infraction and subject to prosecution if they do not compel attendance.
d)  Alternative educational programs for attendance are available.
e)  The parent or guardian has the right to meet with school personnel to discuss the pupil's truancy.
f)  The pupil may be subject to prosecution.
g)  The pupil's driving privileges may be suspended, restricted, or delayed.
h)  The parent or guardian is recommended to attend school with the student for 1 day.
[see California Education Code 48260.5- link is above]

Notification IS MANDATORY so be sure to check your email, mail, and/or phone messages and respond appropriately.

If parents do not respond promptly to address the alleged situation, they may be pushed toward a School Attendance Review Board (SARB) hearing.  It usually is better to try to resolve truancy issues at the school district level rather than to let SARB step in and impose a contract which if not followed could lead to court action against the family and student.



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.

Thursday, January 13, 2011

Blanket Ban on Megan's Law Offender Parents May Not Be Proper

By Michelle Ball, California Education Attorney for Students since 1995

Tonight (January 13, 2011), a small school district located in northern California, will vote whether to continue a policy which provides a flat ban against individuals, including parents, listed on the Megan's Law database as sex offenders, from coming onto their campuses.

I have not been able to access the current policy on line, but in an article in the Sacramento Bee today: http://www.sacbee.com/2011/01/13/3320506/placer-hills-schools-to-reconsider.html#disqus_thread, the policy is described as flatly denying access to anyone listed on the Megan's Law database.  The article also outlines that policies in other districts are not so prohibitive and that the approach to such matters varies district to district.  If true that any parents listed on the Megan's Law website are banned as a group, the district in question has taken a unique stand which likely infringes on parents rights to visit its campuses on matters relating to their children.

There IS a distinct obligation and interest of school districts in keeping individuals who may hurt a child off of campus, but parents also have a right to go on campus to address matters relating to their children in attendance.  Is simply being on the Megan's Law list enough, without a court prohibition and/or disruptive acts occurring on campus, to stop a parent from conducting his or her business on campus?  Should the blanket exclusion apply to parents with certain-types of offenses but not for others?

Regardless of the Megan's Law status, offenders who are not court ordered to be excluded with some reason for exclusion continue to have rights as parents.  A blanket ban with no further inquiry nor review of a parent's individual situation would likely be a tough policy to uphold if challenged.

One thing to be clear about: I am not saying that child molesters should roam the campuses, but I think a BLANKET BAN without further inquiry of anyone on a Megan's Law list is likely improper.  Were this to be allowed, what is the next group which will be banned?  It could conceivably be any parents who have felonies, and later all parents who have misdemeanors.  Parents have rights too, and unless there is a court order preventing their access and/or acts leading to a current prohibition, their access should be allowed.  Districts should also have an internal appeal process for any parent banned.

The California Education Code section 51101(d) states:

"This section does not authorize a school... to permit participation by a parent or guardian in the education of a child, if it conflicts with a valid restraining order, protective order, or order for custody or visitation issued by a court of competent jurisdiction."

This is a matter for the courts to determine and if the courts do not issue an order on a Megan's Law or other offender stating they may not enter school campuses, the school district may be overstepping their boundaries in installing a blanket prohibition.

The Penal Code allows exclusion of a parent or other person for disruptive conduct for a maximum of 14 days unless a court order is sought.  If a school district has concerns regarding ANY parent, they may involve the courts and have that parent banned (if the evidence supports such a ban).  This is a much fairer way to approach such matters than a blanket ban.  In the matter at hand, a parent with a Megan's Law violation could potentially be monitored and if any foul play was occurring, the school could call the police and immediately issue a letter banning the parent for up to 14 days.  They could thereafter seek a court order for time beyond that.  This may not be as "easy" as a blanket ban, BUT would ensure that a parent's right to be involved in their children's education is not infringed.  

I know this is a hot topic, but both sides of the coin must be reviewed.  This matter certainly poses some food for thought!  What do you think?

I wrote about the banning of parents from campus in early 2010 on my website here: http://www.edlaw4students.com/archive.html#banned

[For more information on Megan's Law see here:  http://www.meganslaw.ca.gov/)]


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.

Wednesday, January 12, 2011

College Difficulties? Check the College Policies First

By Michelle Ball, California Education Attorney for Students since 1995

What is one of the first steps a student should take when faced with a problem at a college, such as a discipline matter or internship difficulty?  The student should first check the written POLICIES of that college.

This may sound like a simplistic answer, but one of the first questions when evaluating a private or public college matter is "what do their policies say?"  This is because colleges generally are supposed to follow their own written policies.  This seems obvious, but despite the fact written policies exist, colleges do not always follow them.  This failure may be asserted against a college to the student's advantage to lessen a proposed punishment or reverse an action taken by the college..

State and federal laws are of course always important and can define mandatory items required of colleges. These often will be memorialized in college policy, particularly in the public colleges.  But, colleges also have areas which remain unaddressed by state or federal law.  Colleges may then create a policy to fill the gap  which they may thereafter be obligated to follow.

For example, there may be no state or federal law regarding internal hearing appeal rights, or the right of an attorney to attend a college discipline hearing.  These matters thus may be defined in college policy.

I have been involved in multiple matters where colleges had written policies which were not followed.  This gave me leverage to resolve a seemingly unresolvable matter.  For example, I became involved in a situation where a California university student had already had his discipline hearing prior to my involvement.  The outcome had been very negative for my client.  However, when I reviewed the matter and found numerous breaches by the college of time limits, hearing rights, and other items outlined in the college policy, we were able to renegotiate the matter and reduce the penalty to an amount which was less than half of the original penalty.  This was a great outcome indeed.

Best of luck!


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.

Monday, January 10, 2011

Students Have A Right To Postpone A School Expulsion Hearing for 30 Calendar Days

By Michelle Ball, California Education Attorney for Students since 1995

Parents of students attending public schools often feel helpless when they are facing a school expulsion hearing.  After they receive notice of the hearing, they may have less than 10 days to prepare.  It is usually a new experience and is confusing.  As such, parents should be aware of their AUTOMATIC right to a postponement of any public school expulsion hearing in California.

Per California Education Code section 48918(a), a student is entitled to at least one postponement up to 30 calendar days no questions asked.

If a parent wants to get prepared or discuss the matter with an attorney, and time is tight, a postponement request can be made in writing to the school district.  Parents may request a mutually agreeable date be provide for the new hearing and can even let the district know some good dates for the family.  There is no guarantee the district will set the hearing on those dates, but it is worth a try.

Parents sometimes come to my office (Law Office of Michelle Ball, Sacramento California) after the expulsion hearing has been held stating that they thought the school would "do the right thing," and would "listen and change their mind."  While we may all have hopes and dreams, it is not my experience that this will occur. Rather, the expulsion hearing is very important and should be approached with all your ducks in a row.  If a simple postponement means the difference between being prepared or unprepared and/or seeking legal advice and/or representation, a parent might want to exercise their option to postpone.  Their attorney, if they have one, may also request such a postponement.

If an attorney will be involved, the postponement is best coming from legal counsel.

Best of luck.


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
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.

Saturday, January 8, 2011

Bullying- Some Good Weekend Reading

By Michelle Ball, California Education Attorney for Students since 1995

Bullying is certainly a hot topic in the school setting and can be very destructive if not addressed.  As such, parents and students may be interested in reading the below letter to school districts written by the United States Department of Education discussing bullying and what school districts should do in certain bullying situations.  It can also be printed out and shared with administrators (or others) if a parent or student finds the school ignores their complaints.

Check it out as this information could be helpful for you or someone you know:  http://www2.ed.gov/print/about/offices/list/ocr/letters/colleague-201010.html

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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.

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
http://www.edlaw4students.com/
http://edlaw4students.blogspot.com/

Friday, January 7, 2011

When is School Expulsion Mandatory in California Public Schools?

By Michelle Ball, California Education Attorney for Students since 1995

School expulsion is NOT something any parent wants their child to endure.  To be removed entirely from a school district to have to attend school elsewhere (continuation school, other district, etc.) is not a fun process and a permanent mark is placed on the student's record which may come up later in life (college, job applications, etc.).  As such, it is good to know WHEN an expulsion is MANDATORY for a school district.  In other words, when does a school district have no choice but to recommend expulsion and thereafter expel a student?

In California there are only five cases where a public school student MUST be expelled.  Please see Education Code section 48915(c) for more specifics [http://www.leginfo.ca.gov/cgi-bin/displaycode?section=edc&group=48001-49000&file=48900-48927]:

1)  Possessing, selling or furnishing a firearm.
2)  Brandishing a knife at another person.
3)  Unlawfully selling a controlled substance.
4)  Committing or attempting to commit a sexual assault or committing a sexual battery.
5)  Possession of an explosive.

These are the big 5.  IF the district can prove at their hearing that one of these occurred they are legally obligated to expel a student.  Additionally, per California Education Code 48916, an expulsion under any of these five areas will not have a readmission review date until a full calendar year after the date the governing board votes to expel.  The governing board, however, may set an earlier date on a case-by-case basis.
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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.

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
http://www.edlaw4students.com/
http://edlaw4students.blogspot.com/

Thursday, January 6, 2011

Filing a Late Claim with a School District, College or Governmental Entity

By Michelle Ball, California Education Attorney for Students since 1995

The last two posts concerned filing the prerequisite claim form prior to going to court if one is suing a governmental entity in California.  But, WHAT DO YOU DO IF YOU MISS THE SIX MONTH  TIME LIMIT TO FILE YOUR CLAIM?

Remember, there are two time limits we have discussed for filing a claim form: one at 6 months for certain
types of claims (e.g. personal injury, death, etc.), one at one year (claims not within the 6 month requirement). [http://edlaw4students.blogspot.com/2011/01/notification-to-school-districts.html]  Whether and how someone may be allowed to file the required notification with the governing body for claims which must be filed within the 6 month time period after that 6 month period will depend on the claimant and what they can prove.

An example of a potential claim to be filed within 6 months could be: a student is beat up on campus by a group of thugs when there is no supervision by the school during school hours.  He is in the hospital.  He is a minor (under 18).  His mother does not know about the claim form filing requirements until 6 months and 1 day after the incident (the form was due no later than 6 months from the date he was injured).  Can she still file the notice with the Board?  Yes, but there are hoops.

Take the same student, but he is an adult now.  Can he file?  The answer depends, but his case will be more difficult and may require a visit to court if the governing board won't accept his claim late.

In both cases the claimant must file an application with the governing body requesting they accept his claim late.  This must be filed within 1 year of the date of the accrual of the cause of action.  See Government Code 911.4 [http://www.leginfo.ca.gov/cgi-bin/displaycode?section=gov&group=00001-01000&file=910-913.2].

In both cases, if the governing body refuses to allow the claimant to file late, the claimant may petition the court for the late filing to be accepted.  However, how easily their arguments will be accepted by the courts and/or the particular governing body may depend on WHO the claimant is and their status.


The case of a minor (individual under age 18):

The time limits for presenting claims to government entities in California apply even to minors.  However, being a minor is a good excuse for filing the claim late (within 1 year of claim accrual).  If the claimant is a minor when they file the petition to the governing body to submit a late claim, the governing body is mandated to allow them to submit the claim late under the Government Code.

However, if the request to file late is filed 1 year and 1 day after the accrual of the cause of action, the governing body will deny the right to file late.  The claimant is then required to go to court to try to get this decision overruled.  Unfortunately, the court could refuse to accept the late claim.  As such, it is very important for the time limits to be met.

The case of an adult:

If an adult student is late, they must also file a request for a late claim to be accepted, but they will have to demonstrate one of the following (a minor could also demonstrate these but simply being a minor during the time period is enough excuse to have the late claim accepted before the year period for submission is through):
1)  The failure to present the claim was due to mistake, inadvertence, surprise, or excusable neglect and the public entity was not prejudiced in its defense as a result
2)  Physical or mental incapacity during the entire time for presentation of the claim which caused the inability to file.
3)  Death of the claimant.
[Government Code section 911.6]

The hurdles will be bigger for the adult student.  If the governing body does not allow the claim to be filed late, they will have to prove the above to the court and hope they grant their request to file late.

There is a lot to consider in pursuing a government entity such as a school district, college, or other governmental entity and potential claimants need to be mindful of time limit requirements.

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Please see my disclaimer on my blog at the bottom of this page.  This is legal information, not legal advice and no attorney-client relationship is formed by this posting, etc. etc.!

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
http://www.edlaw4students.com/

Wednesday, January 5, 2011

California Time Limits For Filing Claim Form With School Districts under the California Government Code

By Michelle Ball, California Education Attorney for Students since 1995

Yesterday I blogged about the information which must be communicated to a school district prior to filing in court.  This blog will address the very important time limits in place in California for such notice under the Government Code.

There are strict time limits with regard to filing claims against school districts (and other governmental entities) under California law, which the courts do honor.  A case may be rejected if the student (or claimant) did not file the required notice timely with the District (see yesterday's blog here) and file in court timely after that process is complete.

Time for filing with the governing body:
For personal injury claims, claims for death or damage to person or property, and claims for damage to crops (crop damage does not typically come up with my office!), the notice to be filed with the governing body must be presented within 6 months of the accrual of the cause of action (this time may be determined by other statutes depending on the type of action.  Please see Government Code 911.2 for more information).  For other claims, the government code states that the time for presentation is up to 1 year.

Additionally, if the filing IS timely provided to the Board of Education, the Board will either reject the claim, act on the claim, or ignore it. Once rejected, the claimant may proceed to file in court.  If the Board does not act on the claim (e.g. you get no response), it is deemed rejected 45 days from the date submitted (see Government code 911.6).  So, keep your calendar handy!

If the claim is rejected, the Government Code states the claimant has 6 months from the date the claim was personally delivered or deposited in the mail to file in court (see Government Code section 913).

Please be advised that other time limits might apply as well depending on the type of claim and which court it might be filed in.  The above is merely to outline some limits within the Government Code and is not exhaustive.


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.

Tuesday, January 4, 2011

Notification to School Districts Required Prior to Proceeding to Court

By Michelle Ball, California Education Attorney for Students since 1995

In California, the Government Code sets forth the requirements for suing a public (government) entity in the state courts.  That code requires that the entity and its ruling body be provided with written notice IN ADVANCE of fling a claim in court in many situations.  This is a mandatory prerequisite to filing a legal action and applies to actions against public school districts, public college districts, and other governmental entities in the state.  This blog will cover generally what should be provided to the governmental entity.  My blog tomorrow will cover some very important time limits and the two should be read in conjunction.  I will also follow with a third blog (maybe more) to address other aspects.

Content of Notice 
Government code section 910 and the surrounding sections, requires the following be provided to the government entity: [requirements abbreviated below- see the code sections themselves please]

1)  Name and address of claimant
2)  Address where notices should be sent.
3)  Date, place, and other circumstances which led to the occurrence(s).
4) General description of the indebtedness, damage, injury, loss as known at the time.
5)  Name(s) of public employees causing the above if known.
6)  Amount claimed if less than $10,000 and/or note if it is a limited civil case.

The notice should also be signed (unless it is a bill of sale/invoice regularly provided) (see Government Code 910.2).  In the case of school districts, this notice would typically be sent to the governing body (see Government Code 900.2 and the surrounding sections for definitions), such as the Board of Education (Board).  Once this is provided, the Board is supposed to either act on the claim or reject the claim.  They are also supposed to notify the claimant if there are defects in the notice so the form can be corrected and resubmitted.

Prior to writing their own claim form to be filed, a parent/student should first call the Board and/or the Board secretary to ask if they have a blank claim form they could be sent, typically called a "tort claim form."  A tort is, in simple terms a breach of duty.  The Board is required to provide a form (see Government Code 910.4), although sometimes it is hard to get a hold of one and/or the person at the school district does not know what a parent is talking about.  A parent or student may write their own form if the school district does not have one.

In my experience, it is rare for a school district to act on a claim and it is typical for a claim filed to be rejected by the Board.  That may not be everyone's experience. Often we attempt to negotiate prior to filing such a claim as it can be very costly to proceed to court, but if a student/parent is considering going to court, they need to be mindful of these requirements and the time limits involved (see my blog tomorrow for more on that).

There are some matters which are NOT required to comply with this claim requirement, and the list can be explored here.  Some of these include childhood sexual abuse under Code of Civil Procedure section 340.1, occurring after January 1, 2009, retirement benefit claims, and others.  This blog does not cover what is NOT covered, just the basics of what needs to be communicated to the governing body in most cases.

Michelle Ball
Law Office of Michelle Ball
http://www.edlaw4students.com
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Please see the disclaimer at the bottom of this page as this blog is not intended to provide legal advice nor form an attorney client relationship...

Monday, January 3, 2011

Who is writing this blog? California Education Attorney Michelle Ball

By Michelle Ball, California Education Attorney for Students since 1995

Hello!

The blogging world is a new one for me.  I am an attorney in Sacramento, California practicing education law on behalf of students since 1995.  I handle a whole gamut of issues, including student discipline matters, expulsions, suspensions and suspension appeals, even protesting inappropriate behavior contracts and other punishments.  I also delve into special education, attend IEP (Individualized Education Program) meetings, 504 meetings, and file due process as needed.  Help usually begins with a review of documents, and correspondence to the school, school district or college involved.  Oftentimes I can resolve matters via phone and email without leaving my office.  Sometimes we have to go further as a personal appearance is required   (e.g. at an expulsion hearing or board of education meeting) or necessary to move things along.  My clients also help determine which way a matter will go.


I get into many other school related issues including bullying matters, sexual harassment of students, retaliation and targeting of students, transfers, charter school issues, sports, discrimination (disability, race, age, national origin, sexual orientation, etc.) and so many other areas.  I respond to my clients needs and take it from there.  Being a solo, I devote time to what comes my way, which after 15+ years in this field, can be quite interesting and varied!

College matters are a regular portion of my practice.  I often address issues involving internships (especially in health industry type of programs) and the failure of a college to follow their own rules.  College discipline matters also arise as the penalties can be severe (for example, suspension for two years from the college).  Private colleges have their own set of obligations as well.  It is all very interesting and I am still learning daily.

Parents and students are very wise to seek legal help, even if just to consult and bounce their matter off an education attorney.  It is important.

I am a solo practitioner and do in person and phone consultations after a call to my office at (916) 444-9064 (plus some forms in advance if we will talk via phone).  I am licensed in California so can practice statewide, but do not handle matters outside California.  As such, this blog will generally focus on California and federal laws which arise in my practice day to day.

I look forward to getting into this more and to hopefully providing a smidgen of helpful advice to parents and students with issues related to their schools- and there are so many!  Check out my website at http://www.edlaw4students.com.  I look forward to hearing from you.

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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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.