Wednesday, November 20, 2013

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

By Michelle Ball, California Education Attorney for Students since 1995

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

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

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

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

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

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

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

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

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

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

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

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



Wednesday, November 13, 2013

School Suspension Or Expulsion For Controlled Substances

By Michelle Ball, California Education Attorney for Students since 1995

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

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

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

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

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

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

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

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

Is Student B selling?  What do you think?

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

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

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

Best,

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


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

Wednesday, November 6, 2013

Minimum Physical Education Requirements in California Schools

By Michelle Ball, California Education Attorney for Students since 1995

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

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

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

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

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

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

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

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


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