Thursday, October 13, 2016

Do You Have To File A Claim Form Each Time You Want To Sue A School? Maybe Yes Maybe No: Here Are Some Exceptions

By Michelle Ball, California Education Attorney for Students since 1995

Filing a required claim form with a government agency, such as a school or school district, prior to moving to court can be a daunting and confusing task.  I have previously written about the pre-court filing requirement for certain claims against a school or school district (herehere and here) but wanted to add a list of some exclusions (may not be an exhaustive list) for parents and students. 

I don't need to reiterate my earlier posts on filing and late filing, but one code section is relevant when evaluating whether a pre-court filing may be required or not.  California Government Code section 905 states:

"There shall be presented in accordance with Chapter 1 (commencing with Section 900) and Chapter 2 (commencing with Section 910) all claims for money or damages against local public entities except any of the following:

(a) Claims under the Revenue and Taxation Code or other statute prescribing procedures for the refund, rebate, exemption, cancellation, amendment, modification, or adjustment of any tax, assessment, fee, or charge or any portion thereof, or of any penalties, costs, or charges related thereto.

(b) Claims in connection with which the filing of a notice of lien, statement of claim, or stop notice is required under any law relating to liens of mechanics, laborers, or materialmen.

(c) Claims by public employees for fees, salaries, wages, mileage, or other expenses and allowances.

(d) Claims for which the workers’ compensation authorized by Division 4 (commencing with Section 3200) of the Labor Code is the exclusive remedy.

(e) Applications or claims for any form of public assistance under the Welfare and Institutions Code or other provisions of law relating to public assistance programs, and claims for goods, services, provisions, or other assistance rendered for or on behalf of any recipient of any form of public assistance.

(f) Applications or claims for money or benefits under any public retirement or pension system.

(g) Claims for principal or interest upon any bonds, notes, warrants, or other evidences of indebtedness.

(h) Claims that relate to a special assessment constituting a specific lien against the property assessed and that are payable from the proceeds of the assessment, by offset of a claim for damages against it or by delivery of any warrant or bonds representing it.

(i) Claims by the state or by a state department or agency or by another local public entity or by a judicial branch entity.

(j) Claims arising under any provision of the Unemployment Insurance Code, including, but not limited to, claims for money or benefits, or for refunds or credits of employer or worker contributions, penalties, or interest, or for refunds to workers of deductions from wages in excess of the amount prescribed.

(k) Claims for the recovery of penalties or forfeitures made pursuant to Article 1 (commencing with Section 1720) of Chapter 1 of Part 7 of Division 2 of the Labor Code.

(l) Claims governed by the Pedestrian Mall Law of 1960 (Part 1 (commencing with Section 11000) of Division 13 of the Streets and Highways Code).

(m) Claims made pursuant to Section 340.1 of the Code of Civil Procedure for the recovery of damages suffered as a result of childhood sexual abuse. This subdivision shall apply only to claims arising out of conduct occurring on or after January 1, 2009.

(n) Claims made pursuant to Section 701.820 of the Code of Civil Procedure for the recovery of money pursuant to Section 26680.

(o) Claims made pursuant to Section 49013 of the Education Code for reimbursement of pupil fees for participation in educational activities."

One of the sections referenced above includes claims pursuant to California Code of Civil Procedure §340.1, which relates to childhood sexual abuse.  As we all know, childhood sexual abuse all to frequently occurs in schools or involves school employees. 

Another section referenced is a claim for fees wrongly paid under California Education Code sections 49010-49013, such as a claim for return of fees improperly charged for books, materials, extracurricular activities and otherwise.

Parents and students need to be aware of applicable filing time limits so they can competently pursue their school claims should a dispute, sexual abuse claim, or other situation arise.  

Best,

Michelle Ball
Education Law Attorney 

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


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


Thursday, October 6, 2016

Student On Student Vaginal Ultrasounds Found To Be Search Under Fourth Amendment

By Michelle Ball, California Education Attorney for Students since 1995

Earlier this week, the Eleventh Circuit Court of Appeals found that a transvaginal ultrasound requested of college students at Valencia College in Florida was a search for Fourth Amendment purposes.  

California is within the Ninth Circuit Court of Appeals, but often sister jurisdiction decisions impact and influence decisions here.  The decision is noteworthy for its facts, which college students may want to be aware of, and for the definitive ruling that this conduct did involve a search for purposes of Fourth Amendment analysis.

The basics are that students who entered the state run Valencia College Sonography program were allegedly asked to "volunteer" for transvaginal ultrasounds to be performed on them by other students in the program (male and female).  Three students refused.  Two were allegedly thereafter badgered into allowing this invasive procedure to be done on them.  The third student did not agree and was as a result excluded from the ultrasound procedures, given "two failing grades and yelled at... for an hour until she had a panic attack," according to the decision in Doe v. Valencia College Board of Trustees (11th Circuit, October 4, 2016).  Per Judge William Pryor, these transvaginal ultrasounds involve insertion of a sonogram device into the student's vagina and can be painful and embarrassing.

The students filed suit in federal court alleging breach of their Fourth Amendment right to be free from unreasonable searches, breach of their First Amendment speech rights and other bases.  They requested damages, injunctive relief, and attorney fees and costs.  

The lower court (District Court) dismissed the students' complaint alleging that their communications on the procedure to the college were "school-sponsored" speech and that there was no search.  An appeal of this dismissal was made to the Eleventh Circuit, where the court, taking the students' assertions as fact for the proceeding, found that the speech was not "school-sponsored" and that the insertion of the objects into a student's vaginal area was indeed a search under the Fourth Amendment.

The matter now returns to the District Court for proceedings and presumably a trial.

This case shows the extent to which some colleges may breach students' rights: by forcefully leveraging the power of a potential degree to get students to submit to invasive procedures.  More shocking for most may be the fact of how the college treated the student who refused this intrusive search of her body- with reported degradation and failing grades.  

Just another day in the life of a college student at the mercy of government run educational institutions.

Best,
Michelle Ball
Education Law Attorney 

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


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

Friday, September 16, 2016

Athletic Motivation In Sports Transfers- Avoiding The Allegation

By Michelle Ball, California Education Attorney for Students since 1995

High school sports laws in California are the bane of many parents, and students, existence.  They are restrictive and can be confusing for one and all.  One of the most common issues for students involves the transfer process, particularly when an overzealous parent calls up the new school prior to the transfer or an old coach is associated with the new school.  This may be found to be "athletic motivation" and can result in the student not being able to participate in sports for one calendar year.

No student who transfers schools (whether they move or not) may participate in sports at their new school until they are granted permission by the California Interscholastic Federation (CIF), the ruling body over California high school sports.  CIF writes bylaws which are updated annually (usually during the summer) which cover most sports issues, including the ability of students to participate.  If certain situations are found, such as athletic motivation, students will be restricted.  

What is "athletic motivation" per CIF?  Under CIF Bylaw 207C, what encompasses athletic motivation may include the following:

1)  Relocation to a school within one year of a former high school coach moving to that school.
2)  Relocation to a school when the student participated in a non-school athletic team (e.g. a club team) during the last 24 months, which is associated with the new school.
3)  Relocation to a school where the coach of a student's community team works or is associated.
4)  Relocation to a school where a majority of students from the transferring student's club or other community team attend.
5)  Relocation to a school with which the student or their relatives have had pre-transfer contact, including but not limited to attendance at orientation or informational programs. 
6)  Relocation to a school about which the student or a relative has obtained pre-enrollment information from a third party, even via a friend who attends the school, a school club, or an intermediary.  
7)  Attendance at events of the transferring student (prior to transfer) by anyone representing the new school, e.g. a coach of the new school attends the student's football practice at the old school prior to transfer.

Note: This may not be an exhaustive list.

Number 5 can even encompass a situation where a student has a friend attending the new school and talks to that friend about their school, then moves there.  The transferring student may be found to have athletic motivation due to the pre-enrollment contact.  

Here is what the CIF Bylaw 207C.(1) defines as pre-enrollment contact:

"Pre-enrollment contact may include, but is not limited to: any communication of any kind, directly or indirectly, with the student, parent(s)/guardian(s)/caregiver, relatives, or friends of the student about the athletic programs at a school; orientation/information programs, shadowing programs; attendance at outside athletic or similar events by anyone associated with the school to observe the student; participation by the student in programs supervised by the school or its associates before enrollment in school..." [2016-17 CIF Constitution and Bylaws]

If a student is found to be athletically motivated by CIF, they can try to overturn that decision by attacking the basis for CIF's decision on appeal or by proving that:

"The [pre-enrollment] communication was completely unrelated to any aspect [of the new school] AND 
Was of a type that, from the objective point of view of a reasonable person disinterested in the win/loss records of [the new school] does not have an effect upon the integrity of interscholastic athletics at [the old or new school]." [CIF Bylaw 207C(9)].

All pre-enrollment contact must be disclosed to CIF.

If you sit scratching your head on how overbroad this is, you are not alone.  From reading the bylaws, it seems that almost any contact with a new school prior to enrollment, could support athletic motivation.  And, if a student's second cousin, unbeknownst to the student, calls the school about football, this could be athletic motivation, and if a man who is married to a Board member talks to the student this could also be athletic motivation-- and on and on... This is because the bylaw is written to encompass way to many situations and is untenable for most families to manage in the real world.

All I can say is: "Welcome to high school sports!" [big smile, goofy baseball cap on, and floppy foam finger waving cheerfully!]  

So, to try to avoid the athletically motivated allegation (hopefully), a family must ensure they avoid these situations.  Otherwise, their child may be sitting on the bench at their new school for a full year unable to participate in sports.*


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

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

*Please note this entry is based on the CIF rules from 2016-2017.

Tuesday, August 2, 2016

Preventing Problems In Special Education Service Delivery When Changing School Districts

By Michelle Ball, California Education Attorney for Students since 1995

Moving your home is never easy, but some stuff should be smooth: calling to set up utilities, finding a local grocery store, enrollment in school.  These things should not be big deals, right?  Sure.  But, what if your child is in special education?  How will their move go?  Things can get sticky or services may stop altogether.  Parents need to take action prior to relocating with a special needs student to try to avert disaster.

Technically and legally, nothing should change for your child at their new school.  If a student had a full time aide while being mainstreamed, they should get a full time aide and be mainstreamed at their new school.  If they had Resource English class, they should have it again, at least for a little while.  Sounds simple.

The California Education Code section which addresses moves, 56043(m)(1) states:

 If an individual with exceptional needs transfers from district to district within the state, the following are applicable...

(1) If the child has an individualized education program and transfers into a district from a district not operating programs under the same local plan in which he or she was last enrolled in a special education program within the same academic year, the local educational agency shall provide the pupil with a free appropriate public education, including services comparable to those described in the previously approved individualized education program, in consultation with the parents or guardians, for a period not to exceed 30 days, by which time the local educational agency shall adopt the previously approved individualized education program or shall develop, adopt, and implement a new individualized education program that is consistent with federal and state law. [emphasis added]

This applies to students changing districts in-state, leaving their old "SELPA" (Special Education Local Plan Area).  SELPAs may cover an entire county, one district, or a region.  Students moving in California and out of their prior SELPA should receive equivalent IEP services upon entrance to a new school district. Within 30 days of entrance into the new district, an IEP meeting should be held and the old IEP adopted or a new IEP developed.  As usual, if parents do not agree to suggested changes to the prior IEP, they may reject some or all of them.

Per state law, if a student moves within the state and within the same SELPA, the new District must adopt the old IEP and provide services unless the parent and new IEP team agree to develop a new IEP (CA Ed Code section 56043(m)(2)).  In other words, the IEP continues and no meeting must be set.

Federal law basically states that a student changing districts during the same school year within the same state shall receive comparable services at the new location (20 US Code 1414(d)(2)(C)(i)(I)).

If a student comes from outside of California, comparable services must be provided, but a new IEP cannot be developed until an assessment is completed (CA Ed Code section 56043(m)(3)) unless the new district determines a new assessment is not "necessary." (20 US Code 1414(d)(2)(C)(i)(II)CA Ed Code section 56325(a)(3)).

The only wrinkle in all of this is that the codes mention moves within the same academic year.  No mention is made of a move during the summer, but arguably, the same things will apply whether a change is mid-year or during the summer. IEPs don't just evaporate depending on what month one moves.

An interested parent might now think: "This sounds great, as all schools will know and apply the law to all students and ensure my child gets services from day one, won't they?!"  (crickets chirping)  Unfortunately, its not always that simple.  

Far too many distraught parents find that entering a new school for a special education student is a negative experience.  For example, Mom gets a call from the school office verifying the secretary saw that her daughter (incoming student) is special education and Mom now believes all is well.  However, when Jenny goes to school, there is no aide, she is not receiving her support services, and no speech and language sessions (supposed to be 3 times a week) are set up.  Instead, Jenny is placed in a mainstream class with nothing more than a "hello."  If she is lucky, a school counselor will show up to greet her.  

To try to avoid this scenario, parents must prepare far in advance of a move.  Here are some potential actions one may take:

1)  Determine what the district of residence is for the new home.
2)  Contact the district and verify the school your child will attend (sometimes schools are impacted and there may be no space).  The school site may change also depending on special education services needed.
3)  Speak to the person in charge of special education services at the new school/district.
4)  Ask them to immediately request copies of the child's records.  
5)  Send your own copies of the current IEP and any relevant assessments.  Often when a student is moving, files will trail them, not arriving until sometime after the student enters.  
6)  Call back to ensure receipt and review of the documents, to verify the services and supports being arranged, what site the student will attend, and all details.  
7)  Reconfirm services are in place prior to entering school.   
8)  Try to get in touch with your child's future teacher(s) and service providers to alert them to your child's entrance, needs, etc. and provide documents to them as needed.
9)  Go with your child on day one and ensure everything is in place (you may need to take the day off of work or be prepared to).  If not, contact the special education coordinator and/or special education director to get things moving.
10)  Work until equivalent services (to the ones on your current IEP from the old district) are in place.
11)  Ensure that another IEP meeting is set up within 30 days and prepare for that.
12)  Remain diligent to ensure services are continuing, checking with your child daily and providers (as needed).

There is probably a lot more which could be done, and this list is just an idea. However, jumping on the situation and helping things along will ensure that the move DOES go smoothly, at least as far as school goes.  Unfortunately, I can't help you with the cable guy.

Best,
Michelle Ball
Education Law Attorney 

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

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

Monday, July 25, 2016

Mandatory Vaccinations For School: Who Will Be Excluded And Parental Options

By Michelle Ball, California Education Attorney for Students since 1995

Most California public school students must be fully vaccinated to attend public or private classroom-based schools.  If a student is not vaccinated, or does not fit within an exemption, they will be excluded from school until proof of vaccination is submitted.  As a majority of children are vaccinated already, most parents will yawn and send their kids to school.  However, what will happen if a student missed even one shot?  Are there any options if a parent does not want to vaccinate their child for the student to attend regular school?  

The list of required vaccinations is outlined in California Health and Safety Code section 120325 and 120335 and includes slightly different requirements if a student is entering classroom-based school in seventh grade or will start under the new law in transitional kindergarten through sixth grade.  The vaccinations required if a student enters prior to seventh grade are:

     (1) Diphtheria.
     (2) Hepatitis B.
     (3) Haemophilus influenzae type b.
     (4) Measles.
     (5) Mumps.
     (6) Pertussis (whooping cough).
     (7) Poliomyelitis (polio)
     (8) Rubella.
     (9) Tetanus.
     (10) Varicella (chicken pox).

If a student is unvaccinated when they start seventh grade, they do not have to receive the Hepatitis B vaccination.  A presumption may be made that if a student enters beyond seventh grade, this also applies, but the law does not address this.

If a parent missed one of the required vaccinations, or failed to complete all required vaccination administrations (e.g.missed one of the shots in a series), the student may be excluded from school until the vaccination is completed.  The student also may be allowed to continue attending so long as they seek vaccinations within a certain time period (unspecified).

If a parent does not obtain the vaccination within any offered time period, or is not vaccinated promptly, and the parent does not transfer their child to a non-classroom based school or program, it is possible the student will be subject to not only continued exclusion, but ironically, potential truancy breach allegations (breach of mandatory compulsory education laws requiring full time attendance for ages of 6-18 with student being potentially labelled truant after 3 missed days).  As such, any student excluded will be in a bit of a time crunch and will need to act quickly.

There are a few ways around the legal requirement that a child be vaccinated to attend school:

1)  EXEMPTION AND WITHIN GRADE SPAN:  If a parent submitted exemption paperwork prior to January 1, 2016, their child may continue attending the current "grade span" unvaccinated.  Grade spans outlined in the law are from birth to preschool, transitional kindergarten to sixth grade, and seventh through twelfth grade (see CA Health & Safety section 120335(g)).  This means a student entering eighth grade in the fall of 2016 unvaccinated, with a personal belief exemption on file prior to January 1, 2016, may attend through high school.  However, a student entering seventh grade in the fall of 2016 unvaccinated with a personal belief exemption on file is out of luck and must be fully vaccinated.

2)  MEDICAL EXCUSE:  If parents provides a physician's opinion that their child cannot be vaccinated for medical reasons the student may attend unvaccinated (see CA H & S 120370).

3)  SPECIAL EDUCATION:  If a student is a special education student, the law states it "does not prohibit" them from receiving their special education and related services.  The California Department of Health has clarified in their Frequently Asked Questions page, stating:  "Students who have an individualized education program (IEP) should continue to receive all necessary services identified in their IEP regardless of their vaccination status."  There remains some grey area here, and the matter will only be clarified over time and/or by a court or state agency.

4)  ATTENDANCE AT EXEMPT SCHOOL:  Students may also avoid vaccination requirements by attending home-based private schools or public independent study programs with no classroom-based instruction.  An example of this could be seen in an independent study charter or private school where a student remains home for instruction from their parent.  Independent study via a traditional public school may also meet this requirement, so long as no classroom-based instruction is part of the program.

A lawsuit has been filed attempting to reverse the vaccination law based on the right to an education (see for example, Goss v. Lopez 419 U.S. 565).  However, as of right now, the California mandatory vaccination laws, some of the most restrictive in the United States, remain in effect.

The drama and confusion which will unfold in this process will be difficult for some parents.  Hopefully not too many students will be left in the dark or kicked out of their school while it all shakes out.

Best,
Michelle Ball
Education Law Attorney 

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


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

Thursday, June 2, 2016

School Searches of Cell Phones and Electronic Devices Now Prohibited?

By Michelle Ball, California Education Attorney for Students since 1995

Cell phones are often searched by school officials to gather information in discipline proceedings or to search for crimes alleged.  Parents and students are usually at a loss on whether to allow a search of a cell phone when asked by school officials and the proper scope of any search.  Can a school force a student to allow a search of their cell phone?  What is the scope of the search allowed?  And, what if information on another "crime" is found during the search?  A new law, effective this year (2016), may (or may not) bring some closure to these issues.

In October of 2015, the Governor signed into law SB (Senate Bill) 178, also known as the "Electronic Communications Privacy Act" which is reflected in California Penal Code §§1546-1546.4.  Penal Code Section 1546.1(c) states:  

"A government entity may access electronic device information by means of physical interaction or electronic communication with the device only as follows:

(1) Pursuant to a warrant issued pursuant to Chapter 3 (commencing with Section 1523) and subject to subdivision (d). 

(2) Pursuant to a wiretap order issued pursuant to Chapter 1.4 (commencing with Section 629.50) of Title 15 of Part 1. 

(3) With the specific consent of the authorized possessor of the device. 

(4) With the specific consent of the owner of the device, only when the device has been reported as lost or stolen. 

(5) If the government entity, in good faith, believes that an emergency involving danger of death or serious physical injury to any person requires access to the electronic device information."

Why is this relevant for students and parents?  This code restricts government entities from searching electronic devices without the authorized possessor's consent unless they have a search warrant, a wiretap order, it is an emergency involving potential death or serious physical injury, or the device has been reported lost or stolen.  Public school and school district employees are agents of the government who work for the government run state school system.  Many parents often overlook this fact when interacting with school employees.  As factually vice principals, principals and other school staff are government employees, this law should apply to them.

This sounds fantastic at first glance, right?  A student can refuse to let that demanding vice principal search his/her phone?  It seems so for now, but new codes are always "new" and untested, so we will have to see how this code plays out in the school system.  On the one hand, it seems pretty clear that no government entity can search without consent or warrant, etc.  On the other hand, schools often get away with things which are not allowed in other contexts (searches based on reasonable suspicion, discipline for wearing shirt with American flag, expulsion for off campus drug sign, etc.).  There are many examples of this, so I would apply this code with caution.  We will see how it works out in the school context.  For now, let's tentatively hope that it means what it says and will stop nosy school officials from snooping in cell phones looking for student "bad acts."

Regardless, I have found that many students consent to a search of their phone when asked due to thinking they have nothing to hide, or they must do it.  If the school officials have consent, they may search away.  

Although students are "innocent" in many situations, this does not mean they don't have other damning evidence on their phones which may be encountered during a school official's search.  This data, such as pictures, texts, email, etc. may provide proof of a different crime than the one school officials are investigating, and could be used against the student.  As such, it may be a good option just to decline a request for a search prior to it getting started if possible.  

I expect students to be hassled about search refusals due to the newness of this law, but hopefully school officials will respect students' right to privacy as reflected in this law.  I find this respect unlikely, unfortunately.  I also believe schools will try to balk this law and overturn it as it applies to them.  With the way the courts have gone, I foresee them wiggling out of this law in the school setting.  I hope I am wrong.

The scope of any government search is not defined if voluntary consent is given.  If a warrant is served, the search may be limited to fit the scope of the warrant. 

This law should make for some fireworks.  Hopefully it will lessen the almost continuous intrusions into students' phones and personal data, which is rather common these days.

Best,

Michelle Ball
Education Law Attorney 

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


Please see my disclaimer on the bottom of my blog page. This is legal information, not legal advice and no attorney-client relationship is formed by this posting, etc. etc.!  This blog may not reflect current law, may become outdated and/or may be incomplete, and cannot be definitively relied on.  This blog may not be reproduced without permission from the author and proper attribution of authorship.

Thursday, March 3, 2016

Imitation Firearms, School Discipline And Changes To Penal Code 16700

By Michelle Ball, California Education Attorney for Students since 1995

On January 1, 2016, Penal Code section 16700, regarding "imitation firearms," changed and will potentially help students facing discipline for possession of "imitation firearms." 

Air soft guns, BB guns and other similar devices have proven irresistible items for some students. What fun to get one of these "play" guns and go shoot some targets, right?  Unfortunately, these students have ended up in the school office and usually in front of expulsion panels when possessing these devices on campus or within the zone of a school's area of control (to/from school, field trips, near school, etc.).  

Schools look toward many legal codes to get their guidance.  Often, definitions in the Education Code are vague and other codes may need to be looked to for clarification.  The California Penal Code (lists the criminal statutes applicable in California) is a frequently used reference.  

Per Education Code, section 48900(m), a student may be suspended or expelled for possession of an "imitation firearm."  This section defines what an imitation firearm is as:

"a replica of a firearm that is so substantially similar in physical properties to an existing firearm as to lead a reasonable person to conclude that the replica is a firearm."  

This is not that clear, and is similar to the definition in Penal Code §16700(a) of an "imitation firearm."

Penal Code §16700 subsection (b) changed on January 1, 2016.  Previously, this section stated BB guns were not "imitation firearms," but offered no clarification.

This subsection now better defines what is not an "imitation firearm" (in penal code terms):

"'imitation firearm' does not include any of the following:

(1)  A nonfiring collector's replica that is historically significant, and is offered for sale in conjunction with a wall plaque or presentation case.
(2)  A spot marker gun which expels a projectile that is greater than 10mm caliber.
(3)  A BB device that expels a projectile, such as a BB or pellet, that is other than 6mm or 8mm caliber.
(4)  A BB device that is an airsoft gun that expels a projectile, such as a BB or pellet, that is 6mm or 8mm caliber which meets the following:
(A)  If the airsoft gun is configured as a handgun, in addition to the blaze orange ring on the barrel required by federal law, the airsoft gun has a trigger guard that has fluorescent coloration over the entire guard, and there is a two centimeter wide adhesive band around the circumference of the protruding pistol grip that has fluorescent coloration.
(B) If the airsoft gun is configured as a rifle or long gun, in addition to the blaze orange ring on the barrel required by federal law, the airsoft gun has a trigger guard that has fluorescent coloration over the entire guard, and there is a two centimeter wide adhesive band with fluorescent coloring around the circumference of any two of the following:
   (i) The protruding pistol grip.
   (ii) The buttstock.
   (iii) A protruding ammunition magazine or clip.
(5) A device where the entire exterior surface of the device is white, bright red, bright orange, bright yellow, bright green, bright blue, bright pink, or bright purple, either singly or as the predominant color in combination with other colors in any pattern, or where the entire device is constructed of transparent or translucent materials which permits unmistakable observation of the device's complete contents."

The clarification may help in getting an "imitation firearm" charge dropped in school discipline matters.  This change does not mean, however, that students won't face other school or juvenile/criminal charges, particularly if a BB or airsoft device is possessed on a school campus. (still a misdemeanor under Penal Code §626.10). However, hopefully, this will prove useful for administrators and students when evaluating future discipline matters.  We shall see.

Best,
Michelle Ball
Education Law Attorney 

LAW OFFICE OF MICHELLE BALL 
717 K Street, Suite 228 

Sacramento, CA 95814 
Phone: 916-444-9064 
Email:help@edlaw4students.com 
Fax: 916-444-1209
[please like my office on Facebook, subscribe via twitter and email, and check out my videos on Youtube!]

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


Wednesday, February 17, 2016

Resolving An Expulsion Through Pre-Hearing Negotiation

By Michelle Ball, California Education Attorney for Students since 1995

Have you been hit by notice that a school expulsion hearing is being scheduled against your son or daughter?  Should you go to hearing?  How do you get rid of it?  Most parents get a notice and don't do anything but show up at the hearing. However, that may not always be the best strategy.

With school expulsion hearings, there often is no "winning."  Schools line up a myriad of student statements which may conflict with each other to prove guilt. The accused student's statement is ignored, along with his/her friends' statements. 

When the hearing occurs, many schools do not even bring any live witness testimony to the hearing (this is a whole different evidentiary issue), and the panel evaluating the matter is made of school district employees already biased against the student.  Does this sound like a fair system?  Regardless, it is the system that exists for students and their parents to face.

Additionally, district expulsion panels seem to believe they are limited in what they can do as far as punishment, to expulsion or suspended expulsion, and do not think outside this very punitive box.Sometimes panels do find students innocent, but it is certainly a rare occurrence due to the stacked deck and presumed guilt.

If a student really is innocent and this can be proven, hearing may be the only option if the school won't drop the matter.  However even with innocence, hearing still poses a risk no matter how good the case, particularly with difficult accusations that other students back up.  Witnesses can lie or misperceive, to the detriment of the accused student.

If a student "did it" or did something which makes them culpable in some manner, negotiation options which might be open to a student pre-hearing may disappear at hearing due to the panel's potentially narrow view of punishment options and bias.  Sometimes panels may be persuasively reminded of non-expulsion options but one never knows what will happen. 

With most situations, parents should try to explore pre-hearing negotiated outcome if at all possible. This usually has to be sought, as the school will not generally seek out a parent to offer a negotiated outcome. Or, if they do approach parents, the school's offer is just to "stipulate expulsion" which basically means the parent signs their agreement to the expulsion proposed and no hearing will be held. 

I have discussed various options in a previous post, but continue to be saddened by parents who proceed to hearing naively believing the expulsion panel will "hear them" and "understand," only to later end up in my office with a full blown expulsion having already been issued.  Once that expulsion decision issues and is ratified by the school board, the only option is to appeal to the local county board of education, and there may or may not be adequate bases to support appeal.

Negotiating the expulsion pre-hearing is often a good option for students, and can result in a very positive outcome.  Such outcome, even if it involves some form of punishment, may still be a victory when the potential hearing outcomes are reviewed.  Attempting to negotiate generally serves the best interests of the student involved, to try to obtain the most positive outcome possible.  It is certainly better than blindly showing up and hoping a panel of district employees sees it the student's way. They may, or more likely, they may not.

Best,
Michelle Ball
Education Law Attorney 

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

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

Wednesday, January 27, 2016

School Discipline For Damaging School Or Private Property

By Michelle Ball, California Education Attorney for Students since 1995

We all know that our kids' schools can expel or suspend a student for a myriad of items listed in state law and reflected in the school or school district handbook(s). One of the bases for such discipline is basically for damaging (or trying to damage) property.


Per California Education Code §48900(f) a student may be placed up for suspension or expulsion if the student: "Caused or attempted to cause damage to school property or private property."  This may seem very simple and straightforward, but due to its wording, this section allows the schools way too much latitude to punish.


The language which is most problematic allows punishment for an "attempt" to damage property.  What does this mean?  What if a student tries to write on a wall but his pen is out of ink?  What if a student pretends he will dump water on another student's backpack as a prank, but pulls back at the last second: is this an attempt to damage private property despite lack of intent?  What if a student takes another student's shoe and throws it in the air.  It hits the ground but is not outwardly damaged. Is this suspendable? 


Another issue is what is "damage?"  Is damage to property found in eating another student's food (even a minimal amount, such as a carrot stick) at lunch?  I have seen this alleged (along with theft) in a food eating scenario.  What about taking some paper from another student without permission and writing on it?  Is this just normal kid stuff or suspendable damage?  It is very vague what damage is and how much damage must occur under this statute for an offense to occur.  

How about a student who actually draws in a textbook?  That student's parent is already going to face some monetary penalty for this.  Should the student, who may be 7 or 8 years old, be suspended?  It seems like an overreaction, but the code arguably could allow it.  


Unfortunately, this section provides way too much discretion for schools to punish for things where maybe a student should just have a "talking to," receive a detention or simply have no punishment at all depending on the "offense." 

Sometimes it can be more clear an offense has occurred.  For example, if a student takes a permanent marker and purposefully draws obscene marks all over another student's shirt.  In most cases, however, it may not be as clear.

Ultimately, the cards in evaluating damage or attempts to damage school or private property are held by school personnel.  Whether administrators decide if a student should receive a suspension or expulsion for minor activity will depend on the climate at the school, the administrator's attitude, and (hopefully) the seriousness of the activity.  

It may benefit parents to discuss this section with their children lest it be used against them, as this is another potential punishment zinger for kids.

Best,
Michelle Ball
Education Law Attorney 

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

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