Tuesday, July 29, 2014

Appealing A School Expulsion: When Does Filing Make Sense?

By Michelle Ball, California Education Attorney for Students since 1995

Imagine life is rosy, your son is a 4.0 gpa student, wants to go to college, has a job, a girlfriend and is participating in extracurricular activities.  Then, one sunny afternoon, the phone rings and it is your son's Vice Principal, Mr. Jones, who says that your son is up for expulsion for having sold drugs to some kids on campus. Your heart sinks and your world spins.  Is this a joke?  Are you being punked?  No. This is real.

There is no way your son did this.  The school has to be making it up.  He is a great kid with no discipline issues, and there is nothing in his room, on his computer or on his phone.  You are confident that any school panel, despite the witness statements and evidence against your son (all lies!) will believe you.  You decide you don't need help with the expulsion hearing and proceed to hearing alone.  At the hearing, your son explains that he did not do it and has no prior discipline.  The witnesses stating they were sold drugs are not credible (in your opinion).  You are confident the panel of school district employees will know your son is innocent!

Later, your world collapses when you hear the hearing panel's and later the Board of Education's decisions affirming that your son has been EXPELLED FOR 1 YEAR FOR DRUG SALES and will not participate in any senior activities.  He will attend a CONTINUATION SCHOOL!? and will not be able to graduate with his class.  He will have a permanent notation of expulsion in his records.  His future is ruined.

What did you do wrong?  Can you go back?  Can you get a second chance? What do you do next?

Unfortunately parents cannot go back and get a new hearing or explain again. And, they have a quick decision to make on whether to appeal the decision or not to the local County Board of Education.  County education boards exist in every area in California.  If the parent lives in Sacramento, they would consult the Sacramento County Office of Education.  If in Roseville or Auburn, one would consult the Placer County Office of Education, etc. 

An expulsion appeal MUST BE FILED IN 30 DAYS (Cal Education Code §48919) , and must be evaluated prior to filing for chances of success, as the County Boards of Education will only overturn an expulsion in very limited circumstances, per Cal Education Code §48922, including:

1)  The governing board of the school district acted without or in excess of its jurisdiction, or
2)  There was an unfair hearing, or
3)  There was a prejudicial abuse of discretion in the hearing, or
4)  There was evidence which was improperly excluded or could not have been produced, despite reasonable diligence.

What does this mean?  These are mainly fairness and procedural arguments. Education Code §48922 explains a hearing may be "in excess of jurisdiction" if the hearing was not convened timely, the act(s) alleged were not expellable, or the acts were not somehow school related.  An "abuse of discretion" may exist when the hearing findings were unsupported and/or the school did not meet their procedural requirements.  These are very complex and narrow arguments.

Although many expulsions can't fit into these narrow appeal arguments, many are very appealable.  For example, I was recently amazed to meet a parent who was provided a mere 4 days notice of an expulsion hearing.  We filed the appeal and all was reversed prior to the appeal hearing.  The student will return to school in the fall and all expulsion records have been expunged.  The parent had NO IDEA appeal was possible or winnable prior to seeking legal counsel.

Here are some fact situations where an expulsion may be worth appealing (keep in mind whether to pursue an appeal is very fact dependent):

1)  The expulsion hearing was not convened within 30 schooldays and no time waiver was signed by the parent.
2)  Notice of the expulsion hearing was not mailed out 10 days in advance of hearing and no waiver was signed.
3)  Only hearsay evidence was presented at the hearing.  This could occur if the accused student has not confessed or testified and there were no direct witnesses who testified.
4)  The superintendent and/or district representative stayed in the room while the hearing panel or Board deliberated and the parent/student were excluded.
5)  The parents were denied their right to present their defense.
6)  The charges were not supported by the evidence presented in the case.
7)  The family was not advised of their hearing rights as required by the Education Code (e.g. right to have legal counsel, right to question and cross-examine witnesses, etc.)
8)  Other reasons?

In every expulsion matter, appeal support needs to be specifically evaluated prior to proceeding.  Sometimes the school has done everything right procedurally and appeal is pointless.  Other times, a parent may be shocked to find out how many rights were violated.

This is why it is very important to consult with an attorney if you don't like the expulsion hearing result.  Better yet, consult with an attorney BEFORE the expulsion hearing itself.   It is often much better to resolve things early in the expulsion process than after the hearing has already passed.

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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