Thursday, March 26, 2015

One More Tool To Stop Your Child's Expulsion: No Proof Of Other Means Of Correction Or Physical Danger

By Michelle Ball, California Education Attorney for Students since 1995

With school expulsions, it can sometimes seem hopeless.  The school may be able to prove a child "did it," and isn't that it?  Not necessarily.  Schools have at least one more hurdle to jump over to expel a child in most cases (excluding the big 5 mandatory expulsion offenses): proving that other types of correction have been attempted or repeatedly failed and/or the act itself makes the child physically dangerous.

Specifically, California Education Code sections 48915 (b) and (e), require (for non-mandatory expulsion offenses) the following:

[A] decision to expel a pupil for any of those acts shall be based on a finding of one or both of the following:
(1) Other means of correction are not feasible or have repeatedly failed to bring about proper conduct.
(2) Due to the nature of the act, the presence of the pupil causes a continuing danger to the physical safety of the pupil or others.

What does this mean?  This means that the school not only has to prove the act alleged occurred, but also that other means of correction would not work, have been tried and failed, OR the act itself is so heinous that if the child accused returned to school, he/she would present a "continuing danger" to the "physical safety" of themselves or others.  

Other means of correction could be something like the following:

1)  Behavior contract
2)  Counseling
3)  Education
4)  Service at school or in the community
5)  Suspension itself
6)  A sit-down lecture/talk

...or practically anything that can be imagined to address the alleged offense. 

If the allegation is that correction has already been tried by the school but repeatedly failed, a close inquiry of the prior correction attempted should be made as far as relevance to the current situation.  If a kid is in trouble for theft- did he have prior theft corrective actions or not?  

With the physically dangerous branch of the inquiry, the act must be looked at to see if the action makes the child physically dangerous to others.  So, if the student were in a fight, brought a knife, put something untoward in another person's drink, made written or other threats, etc.  the school would use this to allege the student would be a physical threat were he/she to return to school.  

However, if the student is accused of something more minor, such as taking something, swearing repeatedly, or other act which shows no future physical threat, a parent can argue the student will not present a physical threat were he to return.

I frequently see this proof requirement ignored by schools with no proof of anything at hearing and a summary statement in the school documents.  However, these are legal requirements.  If one of these cannot be proven, even if the underlying offense can be, the student cannot be expelled (in the non-mandatory expulsion categories).

Arguments on these matters should be made at the hearing, and likely will need to be made on appeal to the local County Board of Education if the school expulsion panel/board do not seem to understand the arguments or fail in their proof.  Often these questions are glossed over and really not proven in any way.  This opens a door for parents to use this to their child's advantage and maybe to stop or reverse the expulsion. 

Just one more weapon to arm yourself with when preparing for expulsion war.

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.