Tuesday, January 31, 2012

Can IEP Teams Say "No" To Special Education Services Based on Money Woes? No, No and No!

By Michelle Ball, California Education Attorney for Students since 1995

Oftentimes parents attend an Individualized Education Program (IEP) meeting, and although their child needs additional services to meet his or her goals, can be denied needed services based on reasons such as: "no funding," or "we just don't have the resources," or "that is not available here as there are no staff."  Are these legitimate reasons to deny a student services that will meet their unique needs?  No!

The whole special education system can be very overwhelming for parents and they often "trust" the IEP team to guide them on what their child should or should not receive as far as services, placement, and education.  Parents may also simply accept an IEP team denial of services based on money woes of the school district.  However, regardless of the funding problems school districts seem to be having right now, they cannot deny special education services based on those issues.  If a student requires a service (e.g. resource class, speech therapy, or a one-on-one aide) to receive an appropriate education to meet their unique needs, the district should provide the service.

If a district wants to deny services, they have to do so legitimately.  In other words, do a thorough assessment to evaluate, and prove the service is not needed.  If they do this, they may be able to "legitimately" defend themselves on a decision to reduce or deny services.  However, the bottom line is that many districts still will flat out say that "we can't afford speech and language therapy," and tell the parent to take a hike.  Sorry to say, but that is not legitimate.

If the district does not have staff to provide a service such as speech and language therapy, and the special needs student requires that service, the district has to provide the service another way.  For example, the district can pay a private therapist to deliver the speech and language therapy off site and can also pay for transportation to and from the therapy.  The district can't just say the child won't receive the service as they don't have the staff.  If the child needs the service to meet their unique needs, it needs to be provided one way or another.

This is one reason why recording IEP meetings is so crucial.  Often parents can document denials based on lack of money simply by recording the meeting.  When a school/district representative says "we don't offer speech and language due to the budget crisis," or words to that effect, the parents have a valid argument which they can later raise in a due process hearing to overcome the denial.

If a school or district is denying services based on money, parents need to stand up and say that is an unacceptable reason for the denial and demand the service be provided.

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, January 23, 2012

School Expulsion Hearings: Parents Have The Right To Request Witnesses Be Subpoenaed

By Michelle Ball, California Education Attorney for Students since 1995

School expulsions seem to be everywhere now.  Expulsion hearings are very important, and parents need to know their rights.  One of these rights is the right to request that subpoenas be issued to potential witnesses when a school expulsion is pending.

The right to subpoena witnesses
 (order to appear before a body or face consequences)  is an important part of our judicial system.  Courts and other agencies must be able to hear the complete case, listen to all the evidence, and see if the "story" turns out to be true.  This subpoena right also exists in the context of school expulsion hearings, but the subpoena power rests with the school district in question.

California Education Code section 48918(i)(1) states as follows:
"Before the hearing has commenced, the governing board may
issue subpoenas at the request of either the superintendent of
schools or the superintendent's designee or the pupil, for the
personal appearance of percipient witnesses at the hearing. After the
hearing has commenced, the governing board or the hearing officer or
administrative panel may, upon request of either the county
superintendent of schools or the superintendent's designee or the
pupil, issue subpoenas..."


What this means is that parents may request that the district involved issue subpoenas for any actual witnesses who may have seen what occurred.  So, if Johnny is alleged to have stolen money and there was a witness, parents may ask that that person be ordered to testify at the hearing.  Often districts do NOT subpoena witnesses unless a parent asks them to.  Rather, districts instead attempt to get a child expelled based on sworn statements alone with no direct testimony.  This could cause trouble for a district on appeal if there is no confession.

If there is an important witness who will help the child's case, parents cannot expect the district involved to subpoena that person.  In fact, why would the district want to subpoena them as it would ruin their case?!  As such, parents need to actually request that witnesses be subpoenaed by the district in advance.  If the district will not issue the subpoenas, well that is another story for another day and a potential appeal to the board looms.  Chances are that most districts will subpoena witnesses when this is requested by parents.

This all may be confusing, so don't go it alone.  Parents, if you don't know your rights, bring someone in who does...

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 19, 2012

High School Sports Team Exclusion Reversed- A Great Client Testimonial About The Law Office of Michelle Ball

By Michelle Ball, California Education Attorney for Students since 1995

I owe a great debt of gratitude to all my clients who have trusted and supported the Law Office of Michelle Ball since 1995.  As a student attorney, going against schools and colleges in all their various forms, it is not always easy for me or the families I represent.  I am grateful for all the families who have trusted me to get involved and so thankful when they take time to write a positive review of my office.  Check out this testimonial which tells the story of a dire situation involving a sports team exclusion.  I am very proud of the help I have provided and so glad this student is back on the team.  

"My husband and I decided to hire Michelle Ball after our daughter was unjustly cut from the high school varsity soccer team. We appealed the coach’s decision and met with a panel of six which included the assistant principal, the coach, the athletic director, as well as four others. They contended that our daughter had violated the CIF code of conduct by engaging in an altercation which resulted in a school suspension. We agreed that our daughter needed to be punished but that cutting her from the team was unjustly harsh and unwarranted! She had never been in trouble before and was a good student.  They then said that the principal would make the final decision. Days later, the principal called and said she upheld the panel’s decision to not let my daughter back on the team. The principal was not present during the appeal so she never heard what we had to say!!! My husband and I knew that going against the school by ourselves was a futile endeavor. We knew we had to fight and right the wrong that was being done! It was at that point we knew we needed legal representation. We contacted Michelle Ball for that precise reason. Michelle’s staff was always very professional and our questions were promptly and courteously answered. Through her expertise and knowledge we learned that the code of conduct the school so righteously indicated our daughter had violated was actually being violated by the school itself!! Michelle sent a letter to the school district superintendent detailing the school’s obdurate behavior which in itself bordered on gender discrimination. That same week, my husband and daughter were called by the school principal for a meeting. She apologized and told our daughter she was reinstated back on the varsity soccer team. We truly believe that had it not been for Michelle Ball, our daughter would’ve lost out on playing a sport she truly loves her final year of high school!!! Thank you Michelle for righting the wrong of a system that at times acts omnipotent!!!" -- M.A.T. 

Thanks M.A.T!  I truly appreciate the kind words.


 Please note: these testimonials or endorsements do not constitute a guarantee, warranty, or prediction regarding the outcome of a legal matter.

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, January 9, 2012

Sexual Battery As A Basis For Expulsion, Suspension, Or Other School Discipline

By Michelle Ball, California Education Attorney for Students since 1995

I often speak with parents who are shocked and dismayed that their child has been alleged to have committed a sexual battery.  This word and allegation seem to be thrown around willy nilly without thought or understanding for what the REAL definition of sexual battery might be.  As such, understanding what "sexual battery" actually means is important and should be understood by everyone, lest such an allegation mar a student's record and reputation for life.

I am frequently surprised when I see suspension forms and/or expulsion recommendations containing the allegation of student "sexual battery."  This allegation is very heavy, and is specifically defined in the Education and Penal Codes.  This term should not be used unless proof actually exists to support the claim.  


California Education Code 
§48900(n) authorizes schools to suspend or expel students for sexual battery.  Rather than contain a definition in the Education Code, §48900(n) references California Penal Code section §243.4 for a definition of sexual battery.

Per Penal Code §243.4 the elements of sexual battery, in a nutshell, are: 

SEXUAL BATTERY occurs if:
-- A person touches a victim's intimate part and/or forces the victim to touch them or someone else, AND
--  This is against the will of the victim, AND
--  The touching is for the purpose of sexual arousal, gratification, or abuse, AND the act occurs:
* While the victim is unlawfully restrained, OR
* While the victim is institutionalized for medical treatment and is seriously disabled and/or medically incapacitated, OR 
* The victim is unconscious and is touched by a professional who falsely represented the touching was for a professional purpose.

[please note this is my summary only and is not a quote of the statute- please click link to get complete code]

Now which of these MAY apply with California students?  Any, but the one which would typically fit in a school setting is touching while a person is unlawfully restrained, correct?  The second scenario (institutionalized touching) could potentially occur if the victim and student were e.g. placed in residential treatment or the student was visiting a hospital, which is an uncommon occurrence.  The third one (professional) seems to apply to e.g. therapists, doctors, or other such individuals.

If the charge of sexual battery is levied against a student, the parents need to immediately bring the matter to an education attorney to review the facts and circumstances so this allegation can be evaluated and confronted promptly.  If not, the student may have this heinous allegation haunt them for years to come. They may also be cited by the police for alleged sexual battery when none occurred.  


Additionally, parents may be talked into signing an agreement (expulsion, suspension, behavior contract, etc.) which contains a school sexual battery charge.  Or, if they choose instead to go to e.g. an expulsion hearing, they will present their defense of "no sexual battery" to an expulsion panel of non-legal personnel (district employees) who may not grasp just WHAT a sexual battery is and/or whether the student involved actually sexually battered someone.  Even if a parent brings the law with them, or attempts to explain what a sexual battery is to the expulsion panel, they may not be listened to as they are not attorneys.  As attorneys are the only ones licensed to interpret the law, without an attorney, a parent's best argument of NO SEXUAL BATTERY, may still fall on deaf ears.

Parents, it is vital that you seek out legal help if your child has the charge of sexual battery levelled against him or her.  Failing to do so, can have horrible consequences and your child may be marred by such allegations for life.  Don't make the mistake of misunderstanding just what you are getting into when facing a sexual battery allegation.

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.

Thursday, January 5, 2012

What is the Definition of Special Education in California?

By Michelle Ball, California Education Attorney for Students since 1995

Thousands of parents have their children in special education, but do not have any idea what "special education" really is.  In fact their special education definitions can vary greatly as no one is out there giving them instruction or direction on the LEGAL definition of special education.   There IS an actual, specific, legal definition, of "special education" outlined in both state and federal law.

Per California Education Code section 56031(a) "Special education," is:

"specially designed instruction, at no cost to the parent, to meet the unique needs of individuals with exceptional needs, including instruction conducted in the classroom, in the home, in hospitals and institutions, and other settings, and instruction in physical education."

The federal definition, outlined in the United States Code, volume 20, section 1401 (29) [20 USC 1401], which is even more brief:, states:

"The term "special education" means specially designed instruction, at no cost to parents, to meet the unique needs of a child with a disability, including -
(A) instruction conducted in the classroom, in the home, in hospitals and institutions, and in other settings; and
(B) instruction in physical education."

California Education Code section 56031(b) also includes in its definition of special education:

a) Speech and language services.
b) Other "related services" [see section 56363 for a full list]
c) Travel training.
d) Vocational education

The federal law does not include these services in the DEFINITION of "special education," as they are simply categorized under "related services."

All of these subjects could fill books as needed, but needless to say, these are the basic definitions of "special education" with which parents should become familiar.   The legal standard may need to be referenced as even districts can be confused about their obligations.   For example, I had a client who was homebound (could not leave to attend school due to disability issues) and the district denied the student was qualified for special education as independent study was available.  Their denial was mistaken as disabled students may receive instructional services in the home via special education.  When the school was educated on just what special education is and who qualifies, the student was promptly qualified and provided with one-on-one instruction from credentialed teachers at home.

Parents must know these legal definitions exist and what they are.  Attempting to argue any other special education "definitions" can result in losses for the student and confusion for all.  If parents utilize proper legal definitions in their advocacy, they should be able to get further in their quest for services.


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

Tuesday, January 3, 2012

The First Things To Do When Your Child Is Suspended From School (And Even Before!)

By Michelle Ball, California Education Attorney for Students since 1995

Parents are not usually prepared for a school suspension, which can come as a shock, and completely disrupt the day, week, or month (if it is extended prior to an expulsion).  As such, this is an important article to read and pass on, as you never know when you may get "that call" from the elementary, junior high, or high school telling you to come pick up your child as they have been suspended.  What do you do when you get the call your child is being suspended?

1)  TAKE DOWN ALL RELEVANT INFORMATION IN WRITING:  In that initial call, during meetings, in talks with your child, or otherwise, write down all information and keep it handy.  Ensure you note down WHO you are talking to, WHAT is alleged to have happened, WHERE the event(s) allegedly took place, WHAT your child is alleged to have done, WHEN the activity supposedly happened, and HOW everything went down.  Yes, this is "Journalism 101" but I was on the newspaper staff in high school (it paid off!).  This information is critical to getting the whole story, and verifying you know everything.

2)  STAY ON THE OFFENSE:  In the school discipline process, often it can feel like "nothing can be done about it," and that a parent has no control.  This is not true.  Parents CAN do something about it and should always stay on the OFFENSE, going to bat for their child and attempting to SOLVE the problem at hand (suspension or otherwise) in the most positive way.  Taking the steps here can help you to stay positive and may garner beneficial results.

3)  MEET WITH SCHOOL STAFF AND WITNESSES:  Go down to the school immediately after the call, if possible, BEFORE your child leaves and meet with the staff to go over exactly what is alleged.  LISTEN a lot!  Gather the facts.  Try to set up a meeting with the alleged witnesses to the situation.  For example, if the PE (Physical Education) teacher saw an alleged exchange of knives, weapons, drugs, etc. see if they can come in to the office RIGHT THEN to discuss the matter.  Take copious notes as usual.

4)  DON'T SIGN ANYTHING:  Need I say more?  Don't sign the suspension form (be ready and willing for the school to note "parent refused to sign"on the form).  Don't have your child sign anything either.

5)  RESTRICT THE INFORMATION YOUR CHILD PROVIDES:  During the entire suspension and pre-suspension (e.g. investigation) process, it is not a good idea to have your child answer questions, write or sign a statement, or give any information.  Politely refusing to provide information may be very difficult, as it is tough to not give into pressure, taunts, threats of increased punishment, intimidating adults, a cop dangling potential juvenile detention, or otherwise.  A child may be scared, but parents, you must teach your child to politely decline to give, write, sign, etc. information or a statement.  You will have to work out how best to achieve this goal in a way in a way that does not look like the child is being difficult and/or is guilty.  Please note, this is MOST important with school expulsion, but as what is said during a suspension investigation could be used for expulsion, it is also important during the suspension process.  Make the school do the work and don't hand them an admission.  Admissions can lead to not only suspensions, but also expulsion, a ticket from the School Resource Officer (cop), and other bad things.

6)  DO NOT HAVE YOUR CHILD IN THE ROOM DURING YOUR MEETINGS:   Self-explanatory  considering number 5.  We don't want the school to be inspecting your child's reactions.

7) ASK FOR A LESSER AND/OR NO PUNISHMENT:  Remember "It can't hurt to ask?"  Well, that statement is as true here as everywhere in life.  Ask for no punishment, or an alternative punishment (e.g. detention?), and that is what you  may receive.

8)  FILE A SUSPENSION APPEAL:  Occasionally, districts actually have a suspension appeal process.  For example, in  Elk Grove Unified School District (Elk Grove, California), there is an actual written process and forms to complete.  Most districts do not have any formal suspension appeal process in place, BUT that does not mean you should not inquire about an appeal and go up the administrative line.  Ask the school and the district if there is a suspension appeal process, THE DAY OF THE SUSPENSION.  If there IS a process, follow it.  If there is not, simply go up the chain of command.  If you met with the Vice Principal initially, call the Principal next, then the District office, etc.  Make some polite noise and you may get the suspension overturned or shortened.

Parents, please keep this list handy and pass it on to anyone you know who has kids in school.  You may not think "this could happen to you," (or your friends) but it happens to thousands of parents weekly.  For the most part, parents simply don't know what to do, or how best to proceed when struck with a student suspension.  You can do something about it.


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