Education Law and Student Rights

Eight Things NOT To Do At A School Expulsion Hearing

2012-02-15T13:45:00.000-08:00

By Michelle Ball, California Education Attorney for Students since 1995

As school expulsions are occurring at such an alarming rate to our children, it is important for parents to know what NOT to do when embroiled in an expulsion hearing.

Here is what you should NOT do at a school expulsion hearing:

1) Do not allow your child to testify. Make the district prove their case, and don't do it for them. One exception could arise if your child has already fully confessed to having "done it" in writing.
2) Do not forget to object to evidence. If the school district attempts to admit evidence which should not be allowed into the hearing record (e.g. evidence from another student), object and ask for it to be removed.
3) Do not get emotional at the hearing if you are the one making the arguments. If you do not bring an attorney with you and are the one making the arguments to the expulsion panel or board, you should not get emotional. There is no crying or extreme emotion allowed when acting as the advocate for the child. If a parent is testifying as a parent, emotion is fine, but not if your role shifts to the advocate making the case.
4) Do not forget to prepare opening and closing statements and witness questions. You must make an opening and closing statement, plus question any and all witnesses at the hearing. However, in the heat of the moment, you may forget something, so do prepare an outline and list of anticipated questions for the hearing.
5) Do not forget to submit documents. Parents should submit a stack of character letters in support of their child along with any other evidence which can prove they did not do what they are accused of doing. Gather and bring to the hearing all relevant documents and ample copies for all parties.
6) Don't take it personally. The school expulsion hearing may feel personal, but don't take it that way. Act professionally at all times, or your credibility may be ruined.
7) Don't forget the district will not "be nice" in the hearing. Although everyone may be polite, this is war against your child. Parents cannot go into an expulsion hearing believing it is a "light" process or procedure. Expulsion hearings are very serious and have serious consequences. Take them that way and you have a better chance of winning.
8) Don't forget to bring witnesses to support your case. Bring students or others with you to the hearing to support your case via live testimony. If you can't get a hold of them, you need to request they be subpoenaed by the district.

These are some key items all parents going into an expulsion hearing should know. Also, it is usually best to bring an attorney with you to the hearing, but the above should help if you are on your own.

Best of luck in battling the lions when they come after your son or daughter. I always tell my kids I will "slay any dragons" for them, and an expulsion is something you need to defeat, for like a dragon, a school expulsion could leave them scarred for life.

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

Website: http://www.edlaw4students.com/

Blog: http://edlaw4students.blogspot.com/

Twitter: http://twitter.com/michelleaball

Youtube: http://www.youtube.com/user/EdLaw4Students

Facebook: https://www.facebook.com/pages/Law-Office-of-Michelle-Ball/191273330901857

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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.

California School Expulsion Case: John A. v. San Bernardino, An Oldie But Goodie From The California Supreme Court

2012-02-03T18:04:00.000-08:00

By Michelle Ball, California Education Attorney for Students since 1995

Parents often need all the help they can get in handling school expulsion hearings. One of my favorite cases to attack expulsion hearings for an utter lack of proper evidence is John A. v. San Bernardino City Unified School District, decided in 1982 by the California Supreme Court.

In this beautiful case, the California Supreme Court evaluated an expulsion of "John A." for allegedly being involved in a large altercation not witnessed by anyone but students. At John A's expulsion hearing, no direct witnesses (e.g. students who actually saw or were involved in the fight) testified, other than John A. Rather, the district's case revolved around reading a summary from the school into the record and written witness statements. When John A. spoke, he explained that he did not strike nor kick the boys involved. Rather, he said the boys were "play boxing." He denied any racial connection, that he yelled derogatory terms, or that he chased anyone. He also disputed the injuries alleged to two of the participants.

The district expelled him for an "unprovoked attack on two students." On appeal to the county board of education and even the lower court, the expulsion was upheld. Although the lower court later allowed the district to submit 30 declarations showing that there had been threats against students involved in school hearings, it appears that no evidence of any threat from John A. to the witnesses was provided.

The California Supreme Court, overturned the expulsion, ordering it expunged from John A's records. In its decision, Justice Broussard explained: "A decision of the governing board to expel must be supported by a preponderance of the evidence..." and "It [district] may not rely on administrative reports when evidence is conflicting and witnesses are readily available."

The court also discussed the denial of the right to cross examination and the evidence supporting the lack of witnesses (alleged witness danger), stating: "While the risk of retaliation may be substantial in some cases, it does not warrant board reliance on reports in all cases or in the instant case where there is no showing or finding of a significant and specific risk of harm..."

This case is significant in that it reinforces the fact that a student may not be expelled based on hearsay alone (see also Education Code §48918(f)) and that if the district wishes to rely on written testimony instead of calling live witnesses, they must show that "disclosure of identity and producing the witnesses would subject the informant to significant and specific risk of harm...."

This case is music to my ears. It not only backs up the education code, but gives an example of what districts cannot do. They cannot expel a student based solely on written statements without direct testimony showing the alleged act(s) occurred. Also, if they wish to exclude a witness and use his or her written statement instead, they must make a specific showing regarding harm. The legislature defines this further in Education Code 48918(f) as "unreasonable risk of psychological or physical harm."

For now, parents embroiled in an expulsion hearing must be aware that if their child did not confess to the alleged "crime" he or she is accused of, the district must provide at least some direct testimony at the expulsion hearing. If the district wants to substitute written statements for live testimony, they must make a specific showing of potential harm to the witness should they testify. This is an area which is often lacking and can be a great argument for appeal. Districts frequently fail to bring anyone who actually saw the alleged incident to the expulsion hearing, which could give the county board or courts a reason to overturn the expulsion altogether on appeal.

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

Website: http://www.edlaw4students.com/

Blog: http://edlaw4students.blogspot.com/

Twitter: http://twitter.com/michelleaball

Youtube: http://www.youtube.com/user/EdLaw4Students

Facebook: https://www.facebook.com/pages/Law-Office-of-Michelle-Ball/191273330901857

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

2012-01-31T14:41:00.000-08:00

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

Website: http://www.edlaw4students.com/

Blog: http://edlaw4students.blogspot.com/

Twitter: http://twitter.com/michelleaball

Youtube: http://www.youtube.com/user/EdLaw4Students

Facebook: https://www.facebook.com/pages/Law-Office-of-Michelle-Ball/191273330901857

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

2012-01-23T18:22:00.000-08:00

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

Website: http://www.edlaw4students.com/

Blog: http://edlaw4students.blogspot.com/

Twitter: http://twitter.com/michelleaball

Youtube: http://www.youtube.com/user/EdLaw4Students

Facebook: https://www.facebook.com/pages/Law-Office-of-Michelle-Ball/191273330901857

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

2012-01-19T17:45:00.000-08:00

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.

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

Website: http://www.edlaw4students.com/

Blog: http://edlaw4students.blogspot.com/

Twitter: http://twitter.com/michelleaball

Youtube: http://www.youtube.com/user/EdLaw4Students

Facebook: https://www.facebook.com/pages/Law-Office-of-Michelle-Ball/191273330901857

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

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

2012-01-09T18:41:00.000-08:00

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

Website: http://www.edlaw4students.com/

Blog: http://edlaw4students.blogspot.com/

Twitter: http://twitter.com/michelleaball

Youtube: http://www.youtube.com/user/EdLaw4Students

Facebook: https://www.facebook.com/pages/Law-Office-of-Michelle-Ball/191273330901857

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What is the Definition of Special Education in California?

2012-01-05T14:33:00.000-08:00

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/

Blog: http://edlaw4students.blogspot.com/

Twitter: http://twitter.com/michelleaball

Youtube: http://www.youtube.com/user/EdLaw4Students

Faceboook: https://www.facebook.com/pages/Law-Office-of-Michelle-Ball/191273330901857

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

2012-01-03T15:40:00.000-08:00

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/

Blog: http://edlaw4students.blogspot.com/

Twitter: http://twitter.com/michelleaball

Youtube: http://www.youtube.com/user/EdLaw4Students

Faceboook: https://www.facebook.com/pages/Law-Office-of-Michelle-Ball/191273330901857

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Your Tax Dollars At Work, School Funding Explained In California Supreme Court Case: California Redevelopment Association v. Matosantos

2011-12-30T13:05:00.000-08:00

By Michelle Ball, California Education Attorney for Students since 1995

Have you ever wondered just HOW our schools are funded? A great summary is included in California Redevelopment Association v. Matosantos, handed down this week (December 29, 2011) by the Supreme Court of California.

Justice Werdegar, writing for the Court, ultimately upholds Assembly Bill 1X26 which authorizes the closing of redevelopment agencies in California. The case comes to a contrary opinion regarding Assembly Bill 1X27, a bill which gave a way for redevelopment agencies to remain open so long as they made certain payments.

Here is what Justice Werdegar states (excerpted from the California Redevelopment Association v. Matosantos case directly) in the "Background" section. I particularly like his wording when he says "a second event of seismic significance...," cute considering we are in California!

"A. Government Finance: The Integration of State, School, and Municipal Financing

For much of the 20th century, state and local governments were financed independently under the "separation of sources" doctrine. In 1910, the Legislature proposed, and the voters approved, a constitutional amendment granting local governments exclusive control over the property tax. (Cal. Const., art. XIII, former § 10, enacted by Sen. Const. Amend. No. 1, Gen. Elec. (Nov. 8, 1910); see Simmons, California Tax Collection: Time for Reform (2008) 48 Santa Clara L.Rev. 279, 285-286; Ehrman & Flavin, Taxing Cal. Property (4th ed. 2011) §§ 1:9-1:10, p. 1-14.) Each jurisdiction (city, county, special district, and school district) could levy its own independent property tax. (See, e.g.,Temescal Water Co. v. Niemann (1913) 22 Cal.App. 174, 176 ["It is conceded . . . that a municipality has the right to assess all real property found within its limits for the purpose of maintaining the municipal revenues, and that the county taxing officials have the right to levy upon the same property for county purposes."].)

This system of finance had significant consequences for education. Under the state Constitution, the Legislature is obligated to provide for a public school system. (Cal. Const., art. IX, § 5; Wells v. One2One Learning Foundation (2006)39 Cal.4th 1164, 1195.) Seeking to promote local involvement, the Legislature established school districts as political subdivisions and delegated to them that duty. (Wells, at p. 1195; Butt v. State of California (1992) 4 Cal.4th 668, 680-681; see also California Teachers Assn. v. Hayes (1992) 5 Cal.App.4th 1513, 1523.) Historically, school districts were largely funded out of local property taxes. (Serrano v. Priest (1971) 5 Cal.3d 584, 592 (Serrano I); Serrano v. Priest (1976) 18 Cal.3d 728, 737-738 (Serrano II); see County of Los Angeles v. Sasaki (1994) 23 Cal.App.4th 1442, 1450.) Under the California system of financing as it {Slip Opn. Page 5} existed until the 1970's, different school districts could levy taxes and generate vastly different revenues; because of the difference in property values, the same property tax rate would yield widely differing sums in, for example, Beverly Hills and Baldwin Park. (Serrano I, at pp. 592-594.)

We invalidated that system of financing in Serrano I and Serrano II, holding that education was a fundamental interest (Serrano I, supra, 5 Cal.3d at pp. 608-609; Serrano II, supra, 18 Cal.3d at pp. 765-766) and that financing heavily dependent on local property tax bases denied students equal protection (Serrano I, at pp. 614-615; Serrano II, at pp. 768-769, 776). The Serrano decisions threw "the division of state and local responsibility for educational funding" into " 'a state of flux.' " (Los Angeles Unified School Dist. v. County of Los Angeles (2010) 181 Cal.App.4th 414, 419.) In their aftermath, a "Byzantine" system of financing (California Teachers Assn. v. Hayes, supra, 5 Cal.App.4th at p. 1525) evolved in which the state became the principal financial backstop for local school districts. Funding equalization was achieved by capping individual districts' abilities to raise revenue and enhancing state contributions to ensure minimum funding levels. (Lockard, In the Wake of Williams v. State: The Past, Present, and Future of Education Finance Litigation in California (2005) 57 Hastings L.J. 385, 388-391; see generally Wells v. One2One Learning Foundation, supra,39 Cal.4th at p. 1194 [discussing current funding regime].)

A second event of seismic significance followed shortly after, with the voters' 1978 adoption of Proposition 13. (Cal. Const., art. XIII A, added by Prop. 13, as approved by voters, Primary Elec. (June 6, 1978).) As noted, before 1978 cities and counties had been able to levy their own property taxes. Proposition 13 capped ad valorem real property taxes imposed by all local entities at 1 percent (Cal. Const., art. XIII A, § 1, subd. (a)), reducing the amount of revenue available by more than half (Stark,The Right to Vote on Taxes (2001) {Slip Opn. Page 6} 96 Nw.U. L.Rev. 191, 198). In place of multiple property taxes imposed by multiple political subdivisions, it substituted a single tax to be collected by counties and thereafter apportioned. (Cal. Const., art. XIII A, § 1, subd. (a).) Significantly, Proposition 13 did not specify how that 1 percent was to be divided, instead leaving the method of allocation to state law. (See Cal. Const., art. XIII A, § 1, subd. (a)[real property tax is "to be . . . apportioned according to law to the districts within the counties"]; Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization (1978) 22 Cal.3d 208, 225-227; County of Los Angeles v. Sasaki, supra, 23 Cal.App.4th at pp. 1454-1457; City of Rancho Cucamonga v. Mackzum (1991) 228 Cal.App.3d 929, 945.)

Sasaki, supra, 23 Cal.App.4th at pp. 1451-1452; California Teachers Assn. v. Hayes, supra, 5 Cal.App.4th at pp. 1527-1528.) Second, by failing to specify a method of allocation, Proposition 13 largely transferred control over local government finances from the state's many political subdivisions to the state, converting the property tax from a nominally local tax to a de facto state-administered tax subject to a complex system of intergovernmental grants. (See Rev. & Tax. Code, § 95 et seq.; Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization, supra, 22 Cal.3d at pp. 226-227; Sasaki, at pp. 1454-1455; Stark, The Right to Vote on Taxes, supra, 96 Nw.U. L.Rev. at p. 198.) fn. 3 Third, by imposing a unified, {Slip Opn. Page 7} shared property tax, Proposition 13 created a zero-sum game in which political subdivisions (cities, counties, special districts, and school districts) would have to compete against each other for their slices of a greatly shrunken pie.

In 1988, the voters added another wrinkle with Proposition 98, which established constitutional minimum funding levels for education and required the state to set aside a designated portion of the General Fund for public schools. (Cal. Const., art. XVI, § 8; see Los Angeles Unified School Dist. v. County of Los Angeles, supra, 181 Cal.App.4th at p. 420; California Teachers Assn. v. Hayes, supra, 5 Cal.App.4th at pp. 1517-1518.) Two years later, the voters revised and effectively increased the minimum funding requirements for public schools. (Prop. 111, Primary Elec. (June 5, 1990) amending Cal. Const., art. XVI, § 8; see County of Sonoma v. Commission on State Mandates (2000) 84 Cal.App.4th 1264, 1289.)

In response to these rising educational demands on the state treasury, the Legislature in 1992 created county educational revenue augmentation funds (ERAF's). (Stats. 1992, chs. 699, 700, pp. 3081-3125; Rev. & Tax. Code, §§ 97.2, 97.3; see Los Angeles Unified School Dist. v. County of Los Angeles, supra, 181 Cal.App.4th at pp. 420-421; City of El Monte v. Commission on State Mandates (2000) 83 Cal.App.4th 266, 272-274; County of Los Angeles v. Sasaki, supra, 23 Cal.App.4th at p. 1447.) It reduced the portion of property taxes allocated to local governments, deposited the difference in the ERAF's, deemed the balances part of the state's General Fund for purposes of satisfying Proposition 98 {Slip Opn. Page 8} obligations, and distributed these amounts to school districts. (County of Sonoma v. Commission on State Mandates, supra, 84 Cal.App.4th at pp. 1275-1276; see Los Angeles Unified School Dist. v. County of Los Angeles, supra, 181 Cal.App.4th at p. 426 [ERAF's are an " 'accounting device' " for reallocating property taxes to school districts from other local government entities].) Periodically thereafter, the Legislature through supplemental legislation required local government entities to further contribute to the ERAF's in order to defray the state's Proposition 98 school funding obligations. (Los Angeles Unified School Dist., at pp. 420-421.) Local governments had no vested right to property taxes (id. at p. 425); accordingly, the Legislature could require ERAF payments as "an exercise of [its] authority to apportion property tax revenues." (City of El Monte, at p. 280; see Cal. Const., art. XIII A, § 1, subd. (a).)"

For more from this case, please see it here.

Where else could one find such a great summary of the complex background regarding school financing? Thank you your honor!

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/

Blog: http://edlaw4students.blogspot.com/

Twitter: http://twitter.com/michelleaball

Youtube: http://www.youtube.com/user/EdLaw4Students

Facebook: https://www.facebook.com/pages/Law-Office-of-Michelle-Ball/191273330901857

IDEA Court Case: Berns v. Hamilton Southeastern Schools

2011-12-27T16:02:00.000-08:00

By Michelle Ball, California Education Attorney for Students since 1995

The Seventh Circuit Court of Appeals recently upheld the denial of a parents request for reimbursement ($$$) for the cost of a private placement at Lindamood Bell. This case illustrates how tricky it can be to obtain reimbursement from a school district for the unilateral placement (e.g. by parents alone) of a child in a private school.

In the case of Berns v. Hamilton Southeastern Schools, decided December 22, 2011, Judge Gottschall opined that the student in question had been provided a Free and Appropriate Public Education (FAPE), as the student made adequate progress toward his goals during his public school placement. According to the case, the student in question suffered from a Traumatic Brain Injury (TBI) at age 4. After that time, the school assessed him and placed him in a pre-kindergarten classroom for four weeks. While in the placement the student met several of his goals and was allegedly making progress toward the others. He was then recommended to move into kindergarten.

According to Judge Gottschall's opinion, the parents' private assessor had previously recommended that the "optimal" placement (see my blog on using words implying need for the "best" placement here) would be year round with an "all day" kindergarten. The parents thereafter requested placement in both sessions of kindergarten (morning and afternoon), and were refused based on his progress toward his goals. The family thereafter became at odds with the district and enrolled their son in Lindamood Bell.

Although there were several procedural errors by the school alleged, the only question was whether the hearing officer's decision that the student received FAPE was proper. The Seventh Circuit found that it was and denied the family's request for reimbursement for Lindamood Bell, for attorney fees, and otherwise.

Although this case was not in the California circuit (our court is the Ninth Circuit), it is illustrative of the importance of evidence and support when placing a child in a private school if the parents intend to later seek reimbursement from a school district. If things are not supported well, or the school can show they DID offer FAPE, parents can be blocked and fail in their reimbursement claim.

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/

Blog: http://edlaw4students.blogspot.com/

Twitter: http://twitter.com/michelleaball

Youtube: http://www.youtube.com/user/EdLaw4Students

Facebook: https://www.facebook.com/pages/Law-Office-of-Michelle-Ball/191273330901857

California College Suspensions And The Right To A Hearing Within Ten Days

2011-12-12T15:14:00.000-08:00

By Michelle Ball, California Education Attorney for Students since 1995

Pursuant to California Education Code section 66017, a California Community College, California State University (CSU), or University of California (UC) may suspend a student for willful disruption, to protect lives or property, or to ensure the maintenance of order. [This is not an exhaustive list.] However, if the suspension by the college is issued immediately (e.g. the student is kicked off campus right then), the student is legally entitled, per this section, to a hearing within 10 days.

If the college suspension is not issued immediately (e.g. the student is still allowed to attend classes) or is merely proposed, 66017 states that the hearing must be "prompt" which may or may not mean "within 10 days." I would argue the college student is still entitled to a hearing within that amount of time.

Section 66017 also instructs colleges to adopt procedures and appoint personnel to deal with discipline matters on campus. Other code sections also apply depending on the type of college involved. Needless to say, I have seen students suspended with no hearing in sight, which is unacceptable.

If you are suspended from college, insist on a prompt hearing within 10 days so you can get back to your studies. We all know how long ten days can be away from college classes and the impact can be devastating. When I attended the University of California, ten days was more than one tenth (1/10th) of my whole quarter! I would certainly have missed a lot of classes, and my grades could have declined significantly, with such an extended period of absence.

Simple knowledge of timelines and assertion of rights can help college students survive the surprise of an unexpected suspension. Hiring a student attorney can't hurt either.

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/

Blog: http://edlaw4students.blogspot.com/

Twitter: http://twitter.com/michelleaball

Youtube: http://www.youtube.com/user/EdLaw4Students

Facebook: https://www.facebook.com/pages/Law-Office-of-Michelle-Ball/191273330901857

Did You Hear The One About The Five Year Old Arrested At School And Taken To A Psychiatric Hospital? No, Really- No Joke....

2011-12-02T17:24:00.000-08:00

By Michelle Ball, California Education Attorney for Students since 1995

As a California Education Attorney, I have heard horror stories for over 16 years since I started helping parents and students. Sadly, the story of five year old Michael Davis, a student of Stockton Unified School District is nothing unusual. It is again, a wake up call for parents.

From what I can gather from internet reports (KCRA, Newsone), Michael is a 5 year old student who allegedly gets in fights and is a behavior problem at school. The first thing here is HE IS 5 YEARS OLD. There is no legal obligation to put your kids in school until they turn six years old. A student who can't sit still, who fights, etc. may just be a rambunctious student and not ready for the controlling environment that the public schools have turned out to be. Also, sometimes five year olds can simply be wild and enthusiastic in a physical or distracting way. It was not until the public schools came into the picture that this became a disease.

Additionally, the mother states in her KCRA interview that she had asked for special help for some time and was denied behavior support and other services due to money. Item number 2: you cannot deny a student with a qualifying handicapping condition (Michael is alleged to have ADHD- Attention Deficit Hyperactivity Disorder) the support services which are needed to provide a Free and Appropriate Public Education (aka FAPE) based on money. He likely qualified for special education under the category of Other Health Impaired, which opened the door for special education and support services. Sadly, unless he was designated with a "disability," he could not obtain support services which is an issue in and of itself, but I digress.

Next, the school gets the bright idea to have the school cop talk to Michael to "scare him straight." Mom apparently knew about this in advance. Item 3: bad idea to try to make a 5 year old scared straight. This is not a good idea- they are five. Jail is a vague concept at best and really, could you lock them up in jail anyway? No.

When the cop went to touch Michael, Michael allegedly batted his hand away, kicked him, and pushed papers around. Now, parents of five year olds, is this really that unusual? What about stranger danger!? I teach my kids the danger of strangers and would not want them to allow any stranger to put their hands on them. I would actually have them try to get away. Of course, the fact this was a "cop" in uniform was supposed to make legitimate feelings of fear irrelevant, but I doubt that eased little Michael's mind much.

Next, the cop allegedly zip tied this kid for approximately 2 hours (according to his mother), and took him to a psychiatric facility to be evaluated. Hmmmmmmm...... that's one really bad way to get a kid evaluated without parental consent. Yes, if a student is a danger to self or others, they CAN do this, but was this really reasonable? Had a behavior plan been in place, or had the cop backed off when his "scared straight" approach obviously failed, Michael could have calmed down and gotten back to work.

Long story short, Michael was cited by a cop (at five years old!) and later retrieved from the psychiatric hospital. The charge was later dismissed (thank you your honor!).

This sounds like fiction, but is a reminder to parents: THIS COULD HAPPEN TO YOUR CHILD. DO NOT BE COMPLACENT ABOUT THE SCHOOLS. How would you like your kid carted off to a psychiatric ward when a cop touches them and they react in fear? How would you like your son or daughter to be tied up by the cops because they would not behave in the institution that is our public schools? I would not, and do not like it. Parents may want to investigate placements other than the public schools for their kids, such as home school, as the public schools when it really comes down to it, are not safe at all. Just ask little Michael Davis how safe they are.

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/

Blog: http://edlaw4students.blogspot.com/

Twitter: http://twitter.com/michelleaball

Youtube: http://www.youtube.com/user/EdLaw4Students

Facebook: https://www.facebook.com/pages/Law-Office-of-Michelle-Ball/191273330901857

Suspension or Expulsion For Profanity At School? It's Supposed To Be Habitual

2011-11-28T12:27:00.000-08:00

By Michelle Ball, California Education Attorney for Students since 1995

California parents can often be shocked when they receive a call stating their child is being sent home for five days for saying a bad word at school. I have seen a lot of discipline matters centered around language, including swear words. However, unless the profanity is habitual, a suspension or expulsion may not be legal.

Per California Education Code section 48900(i) a student may be suspended or expelled for engaging in "habitual profanity." Note the code does not say a child may be suspended for "profanity," but rather HABITUAL profanity. This wording is important, and not always understood by the school imposing the discipline.

Habitual is defined in "thefreedictionary.com" as follows (adjective form):

1. done or experienced regularly or repeatedly
2. by habit
3. customary, usual

In other words, habitual profanity must involve swearing as a regular activity of the student. One slip up of saying the "F" word or the "S" word is NOT grounds for suspension or expulsion per the California Education Code. However, easy as it seems to read the statute, I have seen discipline imposed for simply saying a bad word on a single occasion. Technically, this is not a legal basis for suspension.

As it is often harder to remove a record, or reverse a suspension (suspension appeal), than to prevent a suspension in the first place, all parents should discuss language at school with their children. Profane speech may result in a student having a permanent black mark which may haunt them beyond high school. Suspensions (and expulsions) must be revealed when inquired about by colleges, or even when seeking to enter various professions (even becoming an attorney).

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/

Blog: http://edlaw4students.blogspot.com/

Twitter: http://twitter.com/michelleaball

Youtube: http://www.youtube.com/user/EdLaw4Students

Facebook: https://www.facebook.com/pages/Law-Office-of-Michelle-Ball/191273330901857

California Sex Education Can Start In Kindergarten - Parents May Opt Out In Writing

2011-11-15T19:22:00.000-08:00

By Michelle Ball, California Education Attorney for Students since 1995

There is a lot to know about just WHAT is going on in schools regarding sexual education. If you are my age (early 40's), you remember the obligatory sex education class in junior high school (mine was in eighth grade and our teacher read us "The Princess Bride" most of the class). Times have changed, however, and sex education is now being initiated at much younger ages. How young? Kindergarten, which likely encompasses four, five, and six year olds.

California Education Code section 51933 outlines the parameters for sex education in California public schools, and indicates that starting from kindergarten on up, kids may receive sexual education in the public schools. This instruction has to be appropriate for all genders, races, and sexual orientations. In other words, traditional sexual activities and domestic partner type of sexual activities may be instructed.

One may recall the story a while back of a class of San Francisco first graders attending the marriage of their female kindergarten teacher to another female individual. This would probably fall under "sex education." I don't recall ever being allowed to attend ANY wedding during school hours when I was growing up. The story about this at World Net Daily states that two families opted not to send their children and the rest of the students attended.

Education Code 51933 states in part:

(a) School districts may provide comprehensive sexual health education, consisting of age-appropriate instruction, in any kindergarten to grade 12, inclusive, using instructors trained in the appropriate courses.
(b) A school district that elects to offer comprehensive sexual health education... shall satisfy all of the following criteria:
1) Instruction and materials shall be age appropriate
2) ...medically accurate and objective...
...
4) [S]hall be appropriate for use with pupils of all races, genders, sexual orientations, ethnic and cultural backgrounds, and pupils with disabilities....

The code goes on, but these are the only sections I want to cover herein. There are other codes covering AIDS/HIV instruction which I will leave for another day. Needless to say, all types and forms of sexual activities may be instructed starting when kids enter school. According to a 2003 survey entitled "Sex Education in California Public Schools," ninety-six percent (96%) of schools surveyed indicated they provide sex education.

Parents have a right, per California Education Code 51938 to excuse their child from sex ed instruction. Parents must do so in writing.

Some food for thought, especially for parents of young students.

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/

Blog: http://edlaw4students.blogspot.com/

Twitter: http://twitter.com/michelleaball

Youtube: http://www.youtube.com/user/EdLaw4Students

Faceboook: https://www.facebook.com/pages/Law-Office-of-Michelle-Ball/191273330901857

Suicide and Antidepressants- the Candace Downing Story

2011-11-07T15:17:00.000-08:00

By Michelle Ball, California Education Attorney for Students since 1995

Many parents are pressured to medicate their children who may exhibit symptoms of depression, so they can allegedly do "better" at school or in life. Here is a video which parents should watch before they ever pursue antidepressants for their kids based on their school functioning or otherwise. Know the side effects before proceeding with any medication.

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/

Blog: http://edlaw4students.blogspot.com/

Twitter: http://twitter.com/michelleaball

Youtube: http://www.youtube.com/user/EdLaw4Students

Faceboook: https://www.facebook.com/pages/Law-Office-of-Michelle-Ball/191273330901857

California Charter School Case: Bullis Charter School vs. Los Altos School District

2011-11-02T17:01:00.000-07:00

By Michelle Ball, California Education Attorney for Students since 1995

Last week, the California Court of Appeals for the Sixth District handed down Bullis Charter School vs. Los Altos School District (October 27, 2011). This case vindicated the rights of charter schools to facilities reasonably equivalent to other schools in the district. This is an important decision for California parents and students as it will ensure charter students are not jipped and/or do not get stuck in small, run down facilities, with inadequate space for sports, child care, and students.

In Bullis, which interpreted the Charter Schools Act (California Education Code 47600) and Proposition 39 (Education Code 47614), the Court of Appeals granted Bullis' request for a court order to be issued to the Los Altos School District. Essentially, the court ordered the District to provide a "complete and fair facilities offer to Bullis from which it could be determined that 'reasonably equivalent' facilities were provided" (page 46 of attached decision- for you lawyer's out there, this is not the official citation).

The District had provided an offer of facilities to Bullis which was lacking in the following ways (among others):

1) It selected the wrong schools to compare,
2) Did not compare total site size,
3) Did not consider three categories of space: teaching, non-teaching and specialized space in its calculations,
4) Contained flawed and/or missing information on size/square footage.

In laymen's terms, the District's proposal basically compared apples to peanuts, and used flawed figures and percentages to make it appear that Bullis was getting an equivalent space, when they were not. In fact, in the proposal, Bullis was required to share outdoor space, had no classroom for its seventh graders, and did not have child care space allotted, among other things.

This decision is a student victory and will be a boon to charter school students who have sometimes been stuck in facilities which were smaller or in worse condition than local public schools. This is good for all students in California whose school choice will be even better than before.

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/

Blog: http://edlaw4students.blogspot.com/

Twitter: http://twitter.com/michelleaball

Youtube: http://www.youtube.com/user/EdLaw4Students

Facebook: https://www.facebook.com/pages/Law-Office-of-Michelle-Ball/191273330901857

Suspension Or Expulsion For Knives, Guns, Explosives Or Dangerous Objects And A Way Students CAN Have Them On Campus?

2011-10-25T13:38:00.000-07:00

By Michelle Ball, California Education Attorney for Students since 1995

What will happen to Johnny if he has a gun, knife, explosive, or dangerous object on campus without permission? We all know the usual answer, but according to the California legislature, it will depend on whether Johnny has permission to possess the item.

Under California Education Code section 48900(b), students may be suspended or placed up for expulsion if they:

"Possessed, sold, or otherwise furnished a firearm, knife, explosive, or other dangerous object, unless, in the case of possession of an object of this type, the pupil had obtained written permission to possess the item from a certificated school employee, which is concurred in by the principal or the designee

of the principal."

So, if Johnny has a gun, sells a gun, or provides a gun to someone, he can be suspended or expelled. Same difference with a knife or explosive, which seems fairly self-explanatory. With the "dangerous object" portion, schools may interpret "dangerous object" as covering practically anything, rightly or wrongly. For example, a pencil, scissors, stick, book, pillow, spit, urine, chemicals, and on and on, depending on how the object were used. As such, this code section can sometimes be stretched, properly or improperly, to attempt to meet the situation. A parent would of course argue a pillow, book, or other common object was never a dangerous object and the intent was to cover obviously dangerous objects (nunchucks, throwing stars, etc.).

Section 48900(b) provides an interesting exception which could avoid a suspension: permission to possess a gun, knife, explosive or dangerous object (this is too good to be true!). But, how any student would ever get "permission" to possess a firearm, knife, explosive or "dangerous object," is beyond me. I would suggest that any child who actually had the nerve to seek permission to bring one of these items on campus, would be interrogated and searched by today's school administrators. This would not be okay, but they would probably take such a request the wrong way and go after Johnny regardless of what the code says.

Obviously when this code was written many years ago, the legislature thought this might be possible. The only scenario I can think of is for some kind of school play, or an authorized in-class demonstration (show and tell). If "permission" is sought, make sure it is granted in writing and the principal signs off as well as the teacher granting the permission, or the kid could be toast regardless of the situation.

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/

Blog: http://edlaw4students.blogspot.com/

Twitter: http://twitter.com/michelleaball

Youtube: http://www.youtube.com/user/EdLaw4Students

Faceboook: https://www.facebook.com/pages/Law-Office-of-Michelle-Ball/191273330901857

Interdistrict Transfers in California: Can A School Require You To Reapply?

2011-10-19T15:27:00.000-07:00

By Michelle Ball, California Education Attorney for Students since 1995

Interdistrict transfers (move of student from one school district to another at parent request) are common events. A parent does not like where their child attends school, the district programs available (e.g. no GATE), wants their child closer to work, or otherwise wants to move their child. They then request a transfer to another school district. Once that transfer request is granted, can the school require students to reapply year after year for a transfer? No.

Per California Education Code section 46600, two school districts may enter an agreement to accept students of the other district. Once accepted on an interdistrict transfer, however:

"[T]he pupil shall not have to reapply for an interdistrict transfer, and the governing board of the school district of enrollment shall allow the pupil to continue to attend the school in which he or she is enrolled."

This is wonderful as if you are "in," you remain "in." Previously, I would hear from parents who would have to reapply every year to maintain a transfer- no more.

Section 46601, however, does specify that a district may develop terms of revocation. I have often seen VERY VERY restrictive interdistrict transfer agreements stating that if a student "does not follow school rules," their transfer will be revoked. I would certainly argue against revocation for minor events. However, depending on the terms of revocation at the new district, this statute loses some of its strength. Still, for most parents, this will be good news.

Additionally, once a student is transferred and will attend the eleventh or twelfth grades in the upcoming year, their transfer can no longer be revoked. For the school of attendance to kick them out then, they would have to expel them or impose an involuntary transfer. This should ease some parents' worries on their high schoolers' continued attendance.

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/

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Now Is The Time To Change Schools In Roseville Joint Unified School District As District Identified As "Needs Improvement" Under No Child Left Behind: DEADLINE OCTOBER 17, 2011

2011-10-14T11:56:00.000-07:00

By Michelle Ball, California Education Attorney for Students since 1995

Roseville Joint Unified School District has an important deadline approaching Monday October 17, 2011 that parents must be aware of if they have been wishing to change schools. As the District was identified as failing in certain areas, under No Child Left Behind, they are now obligated to allow students from Adelante High School, Roseville High School and Antelope High School to transfer to Granite Bay High School, Oakmont High School, or Woodcreek High School. See below for an email sent to me by a parent regarding this issue. So, act now, if you want to move. Also, see the District website and their announcement and form.

"For Immediate Release: For Further Information, Please Call:

October 5, 2011 Steve Williams (916-782-6565x1057)

Good evening this is Steve Williams, Director of Pupil Services, with an important announcement from the Roseville Joint Union High School District.

Once again, the Roseville District has shown steady improvement on the Statewide Academic Performance scores called API and those scores are posted on the District web page.

However, as part of the federal No Child Left Behind Act, our District has been designated for Program Improvement which requires us to notify every parent and also requires us to accept transfer requests from current Adelante, Antelope, and Roseville HS students to attend Granite Bay, Oakmont, or Woodcreek High School for the start of term two in January.

Students attending Adelante, Antelope, or Roseville High School, who wish to transfer, must apply to Granite Bay, Oakmont, or Woodcreek High School by Monday, October 17.

Student Transfer Enrollment Forms are available in the Main Office of Antelope HS, Roseville HS, the District Office, and online under RJUHSD Student Transfer Choice Program.

Please feel free to call my office if you have any questions at 782-6565x1057.

Thank you and have a good evening.

Steve Williams

Director of Pupil 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/

Blog: http://edlaw4students.blogspot.com/

Twitter: http://twitter.com/michelleaball

Youtube: http://www.youtube.com/user/EdLaw4Students

Please see my disclaimer on the bottom of my blog page [http://edlaw4students.blogspot.com/]. 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.

What Parents Must Consider Before Giving In To School Pressure To Have Their Children Evaluated For A Mental Disorder

2011-10-05T16:13:00.000-07:00

When a school pressures a family to have their child evaluated for a mental illness, usually for special education, it can be a very confusing time. But before parents "give in," they owe it to their child to conduct a thorough and thoughtful evaluation of all possible causes and solutions to the situation. Labeling a child with a mental illness, such as ADHD (Attention Deficit Hyperactivity Disorder), ED (Emotional Disturbance), ODD (Oppositional Defiance Disorder), or some other mental disorder, is a life-changing decision which not only alters the child's life forever, but also opens the door to potential mind-altering drugs to "control" the child's classroom issues.

Since 1995 I have been helping parents and students in all types of school matters, and I have represented parents both in and out of the special education system. I have also assisted a handful of parents who fought against school pressure to label their children with mental health disabilities due to problems in the classroom. The public schools and their staff often push parents to have their child evaluated by a medical professional, such as a psychologist or psychiatrist. Many parents follow through, as their child is not learning, is a problem in the classroom, or acts bad at school, and they don't know what else to do. But is a disease really the cause? Maybe, maybe not.

Consider these other potential causes:

1) An undiagnosed physical disability.
2) Nutrition/food issues.

3) Sleep deprivation.

4) Energy and interest in life.
5) Poor teaching.

6) Poor control of the classroom.

7) Need to move around rather than sit still for 6 hours a day.

8) Failure to understand the work in the time given. Public schools don't stop for any student- they just move on whether the child understands or not. When a child does not understand, they can get bored, distracted, and disinterested.

9) Need for additional assistance with the work at school (not because of a disability, but because they just did not GET something).

10) Teacher conflict with the student and/or a bad fit.

11) Need for more stimulation in the classroom, such as visuals, music, movement, change. Not all students learn best by sitting, listening, and reading.
12) School is not taught in an interesting way.
13) Poor parenting- parents not working with them at home, not disciplining enough, not there.

14) A multitude of other reasons.... other than a mental illness.

Sadly, if a student is pushed into the mental health system for the above reasons, it is not because they have a "DISABILITY," but because of something else. However, they may still be labelled as disabled and carry that crutch the rest of their lives.

Labeling a child with a psychological disorder is a BIG deal, and opens the door for drugs- drugs for behavior, drugs for attention, drugs for...control. If Johnny sits there and no longer blurts out, the teacher will be happier, but will Johnny actually be better off? Parents need to first consider what would help their CHILD to survive, learn, and flourish. The school's needs are secondary.

When considering such avenues, parents should check the following sites (among others) for alternatives and information on labelling and drugging of children for alleged mental disorders:

- Alternative Mental Health.com
- The Block Center- alternative ADHD treatment
- Public Service Announcements and the website of the Citizens Commission on Human Rights
- The Psychiatric Drug Search Engine

Do it for your child.

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/

Blog: http://edlaw4students.blogspot.com/

Twitter: http://twitter.com/michelleaball

Youtube: http://www.youtube.com/user/EdLaw4Students

Prerequisites to School Suspension- Are Alternatives To Suspension Required?

2011-09-27T11:35:00.000-07:00

School suspensions are issued for almost anything nowadays. Wearing a costume, talking back, getting a drink of water when not authorized- all items for which I have seen suspensions issued. Are there ANY prerequisites to issuing a school suspension in California? Are any alternatives to suspension authorized or mandated? Yes and no.

Per California Education Code 48900.5, suspension "shall be imposed ONLY when other means of correction fail to bring about proper conduct." This strong language requires "other means of correction" first right? Right??? Yes, BUT it will depend on the offense.

First, what does "other means of correction" mean? A good talking to, detention, Saturday School, sitting in the office, or other punishment which will teach the kid a lesson.

The words "shall be imposed only when..." seem obvious enough, but are they? Unfortunately, 48900.5 also excludes various offenses including but not limited to fighting, threats, knives, drugs, robbery, and even merely disruptive students This severely limits the requirement of alternatives to suspension.

Parents CAN still use this section to argue for alternatives to suspension, particularly with a minor offense and a kid with a limited discipline history. It also can't hurt to have an education attorney make the arguments for the parents.

Now, I am not a school administrator, but I am a student attorney, and have seen many rules and laws ignored by schools until contacted by my office. Regardless of how good a parent makes an argument, schools tend to ignore any "legal interpretation" until that interpretation comes from an attorney.

When parents are faced with suspension for a minor infraction with no big discipline history, they may want to use Education Code 48900.5 to try to obtain an alternative punishment so their kid does not have to sit home, missing out on his or her education.

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/

Blog: http://edlaw4students.blogspot.com/

Twitter: http://twitter.com/michelleaball

Youtube: http://www.youtube.com/user/EdLaw4Students

Private School Contracts: Do You Have To Keep Paying If Your Child Leaves or is Kicked Out?

2011-09-20T14:57:00.000-07:00

When a student leaves a private school midyear, due to moving, a change of heart, or a discipline exclusion, parents may be surprised to know that depending on their private school contract, they may still be obligated to pay tuition to the school after the student is gone.

Whether the family is obligated or not depends on the contract with the individual private school. Was it written to obligate the family to cover a whole school year or to cover each month of attendance? The answer is important.

Some private schools write contracts to cover a whole year of attendance. In other words, a parent agrees to pay a set amount and it covers that entire school year. The parent may opt to pay in advance, or monthly, but regardless, the amount is intended to cover a whole year. Often the private school will win if this is the type of contract in place. The "logic" applied in these scenarios is that if parents could just leave willy nilly, it would mess up the school planning. For example, if the school has 500 students attending at a total promised amount of $10,000 each, the school counts on $500,000 to cover their salaries, rent, and other expenses. If parents can just leave and not pay, the school may see itself in a tight spot, unable to pay their staff or maintain the school.

Other schools may have parents simply pay monthly to cover the month. In other words, they know they will owe X amount per month and the contract is not for a whole school year. Parents may also pay in advance, but the funds would still simply cover each month individually. These schools may even have in their contract the fact that if a student leaves, any advance would be refunded and/or no amount would be owed. This is a MUCH better arrangement for families, as if something unexpected happens and a student departs, the private school parent involved should not owe past the month they last attended.

The whole thing is very confusing, but I have seen contracts in both camps. So, if possible, it may be a good idea to obtain and compare various private school contracts in advance of enrollment to try to figure out which one is most favorable contractually. For, once a contract is entered, it is not that easy to escape.

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/

Blog: http://edlaw4students.blogspot.com/

Twitter: http://twitter.com/michelleaball

Youtube: http://www.youtube.com/user/EdLaw4Students

School Expulsion/Discipline For Knife Offenses: What IS a Knife Under the California Education Code?

2011-09-14T16:13:00.000-07:00

Many students are suspended or placed up for expulsion for possession of a "knife," pursuant to California Education Code 48900(b). Although what a "knife" is, seems somewhat obvious, it is specifically defined in the Education Code and the definition is important.

A sister section, 48915(g) contains the definition of a knife as it relates to suspension or expulsion. Per 48915(g) a "knife" is:

[A]ny dirk, dagger, or other weapon with a fixed, sharpened blade fitted primarily for stabbing, a weapon with a blade longer than 3 1/2 inches, a folding knife with a blade that locks into place, or a razor with an unguarded blade.

Okay- you may feel like you are somewhere back in time when trying to figure out what a "dirk" or "dagger" is, but click the links to find out. For our purposes, the two most important definitions are:

1) Weapon with a blade longer than 3 1/2 inches, and
2) Folding knife with a blade that locks into place.

This is because in my experience these are two most helpful definitions for parents.

The reason is this: if a kid goes fishing over the weekend, leaves his multi-tool, key chain, or swiss army knife with a blade that locks into place in his pants pocket, and throws those same pants on in the rush to get to school on Monday, he has a knife for expulsion purposes. It does not matter if he did not intend to bring the item to school, nor that he used it for fishing- he could be in trouble if this item is discovered. Of course, many kids, finding such an item in their pants pocket while at school, take it out, fiddle with it in class, show it to friends, or simply use it. That is a very very bad idea. In fact, even if the blade is minuscule, dull, and looks like it could not hurt a bug, if it locks, the school may choose to apply their "zero tolerance" viewpoint and put the kid up for expulsion.

If the same tool does NOT have a locking blade, that is when the 3.5 inch blade issue arises. If a blade is 3 inches long, attached to a multi-tool, and not "primarily for stabbing," this may open a door for attack. Please note: the student still may be put up for school expulsion for other reasons such as possession of a "dangerous object," but that is a story for another day.

Now, don't count on the schools understanding this nuance- it may be a matter to be raised in the child's defense by legal counsel. In my experience, it is rare for schools to listen to parents without attorneys when it comes to legal interpretations.

There is a lot more to say, but basically if a child is up for expulsion for possession of a knife, check the definition above to be sure what they have really IS a "knife." If it isn't then any discipline for a "knife" may be open to attack.

P.S. If you like my blogs, please "like" me on Facebook, and subscribe to my email updates and Youtube channel (see links up and to the right).

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/

Blog: http://edlaw4students.blogspot.com/

Twitter: http://twitter.com/michelleaball

Youtube: http://www.youtube.com/user/EdLaw4Students

Parents Rights in Public Schools- Sixteen Rights (And Counting) Which Parents May Not Know They Have

2011-09-01T18:20:00.000-07:00

California Education Code 51101 has a handy list of public school parents' rights neatly packaged for use when push comes to shove in California schools. Some of these rights may come as a surprise to parents who are being denied a simple parent-teacher conference, can't get their child's records, are denied volunteer opportunities, were never given the school policies, or are having other difficulties in the public school environment.

Section 51101 affords the following rights to California public school parents (be advised this is an abbreviated list and is paraphrased):

1) To be "mutually supportive and respectful partners" with the school.

2) Within a reasonable time to observe their child's current classroom(s) and/or future classrooms if transferring.

3) To meet with the teacher(s) or principal within a reasonable time of their request.

4) To volunteer in the school or classroom, under supervision of school employees and with approval of the teacher (if volunteering in the classroom).

5) To be notified if their child is absent on a timely basis.

6) To receive the results of standardized and statewide tests.

7) To request a particular school and receive a response.

8) To have a safe environment supportive of learning.

9) To examine curriculum materials of their child's classes.

10) To be informed of their child's progress and whom the parent should contact if there are problems.

11) To access their child's school records (see also Education Code 49069 which requires provision within 5 business days).

12) To be provided with data regarding skills and standards their child is to meet.

13) To be informed in advance of school rules, including discipline rules and procedures, attendance policies, dress codes, and procedures for visiting the school.

14) To be informed regarding any psychological testing the school does and to refuse the testing.

15) To participate in parent advisory committees, schoolsite councils, or site-based management leadership teams.

16) To question anything in their child's records with which they disagree.

Now, parents, did you know you had all these rights???? Now go out and use them.

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/

Blog: http://edlaw4students.blogspot.com/

Twitter: http://twitter.com/michelleaball

Youtube: http://www.youtube.com/user/EdLaw4Students

School Dress Codes and the Right of California Parents to Opt Out of Uniform Requirements

2011-08-31T16:26:00.000-07:00

Earlier this week, a parent allegedly punched and injured an elementary school principal in Stockton, California. According to the individuals interviewed in a Fox 40 (KTXL) video (see video below), this was supposed to be because of a t-shirt the student wore. Apparently the parent thought her son was being targeted based on race. I cannot comment on any of the alleged facts in the matter, BUT can discuss dress codes, opting out of them, and even gang-related apparel.

First, per California Education Code section 35183, schools may implement a dress code and may impose a requirement that students wear a uniform to school. If a school chooses to go the uniform route, they are to provide no less than six months notice of the proposed change. They are also to provide some sort of means by which low income families can afford the uniforms.

If a family does not want to have their child wear a uniform they may "opt out" of the uniform requirement. How they do this is not specified in the code, but a district is required to outline just how a parent may opt out in their board policies. Additionally, a student is not to be penalized in any way for not participating.

The school or district may also prohibit "gang-related apparel," but is required, per Education Code 32282, to define just what "gang-related apparel" is in their comprehensive school safety plan. Per section 32282:

The definition [of gang related apparel] shall be limited to apparel that, if worn or displayed on a school campus, reasonably could be determined to threaten the health and safety of the school environment.

If a parent has a concern over the dress code, they may want to review the school dress codes, and the opt out options.

Here's the video regarding the whole Stockton situation:

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/

Blog: http://edlaw4students.blogspot.com/

Twitter: http://twitter.com/michelleaball

Youtube: http://www.youtube.com/user/EdLaw4Students