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
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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.