Expulsion for Possession of a Dangerous Object

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Your child is facing an expulsion hearing for possessing a dangerous object. What can you do?

EXPULSION IS SERIOUS

Expulsion is serious business. A full expulsion lasts for one year. If expelled, your child faces attending a county school filled with other young adults expelled from around your area. It is not an ideal learning situation, obviously. Also, the long-term effects of an expulsion are not promising. Therefore, it is important that you take this seriously. Thus, you must do everything in your power to try to either prevail in the expulsion hearing or negotiate another outcome before the hearing.

POSSESSION OF A DANGEROUS OBJECT

Per 48900(b), a child can be suspended and recommended for expulsion if it can be shown that the student…

(b) 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.

SPECIAL EDUCATION/504 EXPULSION PROTECTIONS

As in any school discipline case, you must determine if the law provides your child with special rights due to a disability. If your child is currently attending school with either a 504 or an IEP, they have rights. These rights are applicable to a defense for possession of dangerous object. Any defense here must show that their possession was related to their disability. Especially relevant are such things as impulse control problems, failure to understand right versus wrong, and paranoia. These things can show that the student’s actions were caused by their disability.

VICTIMIZATION

While not technically a defense, it can be important mitigating evidence to show that your child felt genuinely threatened by another person. Often times, when students bring weapons to school, they are doing so because they believe their safety is truly at risk. Remember that administrative panels are made of educators. They are truly concerned for student safety. If a genuine question of victimization can be raised, panel members are more likely to show compassion for your child.

MISTAKE

Once again, while not a defense, a genuine mistake can persuade panel members to show mercy on a student. I once had a child who took his school backpack on a fishing trip. When he came back, he forgot to take the filet blade out of the front pocket. Through photographs, we were able to show that the student had no ill intent in having the blade on campus, it was there by genuine mistake. In this case, the panel decided against expulsion.

PROBABLE CAUSE TO SEARCH

While certainly a lower standard than that which the police are held to, school personnel still need to have had some cause to search a student. Any thorough defense will explore whether the administrator had such cause. Absent that, the expulsion must be dropped.

PROCEDURAL REQUIREMENTS

Additionally, procedural deadlines and requirements are sometimes unmet. The outcome is important. Have an individual knowledgeable in school expulsions review the paperwork, and determine whether all these important procedural requirements were met.

Finally, please do not minimize the importance of avoiding a school expulsion for your child. Keep in mind, you have a legal right to bring a lawyer to the expulsion hearing, 48918(5). Relevantly, I offer relatively inexpensive flat fee rates. Therefore, you will never be surprised by a big bill if you retain my firm to represent your child.

Finally, if you are unable to afford an attorney, review this  helpful guide.

Expulsion for drug sales

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Prepare to fight if your child is scheduled for an expulsion hearing for drug sales. You are not alone. This is one of the most common offenses for which students are expelled in Orange County, California. Schools are the front line of the war on drugs. Possession and/or sale is almost always a ticket to an expulsion hearing. Between possession and sale, sale is the more easily defended because proof of the offense is often a he said/she said affair.

GOVERNING ED CODE

The governing ed code for this is 48900 (d) which states…

(d) Unlawfully offered, arranged, or negotiated to sell a
controlled substance listed in Chapter 2 (commencing with Section 11053) of Division 10 of the Health and Safety Code, an alcoholic beverage, or an intoxicant of any kind, and either sold, delivered, or otherwise furnished to a person another liquid, substance, or material and represented the liquid, substance, or material as a controlled substance, alcoholic beverage, or intoxicant.

SPECIAL EDUCATION/504 EXPULSION PROTECTIONS

As in any school discipline case, you must determine if the law provides your child with special rights due to a disability. If your child is currently attending school with either a 504 or an IEP, they have rights. These rights are applicable to a defense for sale of a drug. Any defense here must show that the sale was related to their disability. Especially relevant are such things as impulse control problems, failure to understand right versus wrong, and susceptibility to peer pressure. These things show that the student’s actions were caused by their disability.

WITNESSES

Lacking such rights, the most viable course of action is to dispute the truthfulness of the witness(es). Keep in mind here that usually the witnesses have their own issues. To win you must show that the person or persons accusing your child has a motive to lie. There is often little evidence here other than the witnesses to the sale. Importantly, through analysis of the facts and skillful questioning, often weakness and inconsistencies in their story(ies) can be used to score a win.

PROCEDURAL REQUIREMENTS

Additionally, procedural deadlines and requirements are sometimes unmet. The outcome is important. Have an individual knowledgeable in school expulsions review the paperwork, and determine whether all these important procedural requirements were met.

Finally, please do not minimize the importance of avoiding a school expulsion for your child. Keep in mind, you have a legal right to bring a lawyer to the expulsion hearing, 48918(5). Relevantly, I offer relatively inexpensive flat fee rates. Therefore, you will never be surprised by a big bill if you retain my firm to represent your child.

Finally, if you are unable to afford an attorney, review this  helpful guide.

 

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Fighting a Potential Expulsion for Terrorist Threats in California

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Over the past year I have been contacted by and represented parents whose children are being recommended for expulsion for the making of terrorist threats here in Orange County, California. Based on my experiences, I know that Southern California school districts are playing fast and loose with the definition of what constitutes a terrorist threat. If your child is currently suspended and/or faces an expulsion hearing for making a terrorist threat, make no mistake, this is a very serious matter. Fortunately, there are many defenses available in these matters.

This code governing this area of suspension states…

48900.7. (a) In addition to the reasons specified in Sections
48900, 48900.2, 48900.3, and 48900.4, a pupil may be suspended from
school or recommended for expulsion if the superintendent or the
principal of the school in which the pupil is enrolled determines
that the pupil has made terroristic threats against school officials
or school property, or both.
(b) For the purposes of this section, “terroristic threat” shall
include any statement, whether written or oral, by a person who
willfully threatens to commit a crime which will result in death,
great bodily injury to another person, or property damage in excess
of one thousand dollars ($1,000), with the specific intent that the
statement is to be taken as a threat, even if there is no intent of
actually carrying it out, which, on its face and under the
circumstances in which it is made, is so unequivocal, unconditional,
immediate, and specific as to convey to the person threatened, a
gravity of purpose and an immediate prospect of execution of the
threat, and thereby causes that person reasonably to be in sustained
fear for his or her own safety or for his or her immediate family’s
safety, or for the protection of school district property, or the
personal property of the person threatened or his or her immediate
family.

This code lays out some legally significant requirements that districts often either do not understand or choose to ignore.

First off, in order to prove an expellable offense, the school district must show that the student had the “specific intent” for the statement to be perceived as a threat. Specific intent is normally defined as intentionally or knowingly. In some cases I have handled, this element is entirely missing in the case brought by the district. There are many case specific facts which can be argued to show that a student had no specific intent for their statements to be taken as a threat.

Second, I have also handled cases where districts have not honored the requirement that there must be an “immediate prospect of execution of the threat.” Once again, this is a fact intensive analysis of the specific words used by the student. In many cases, there are strong arguments to be made that no reasonable person should have felt immediately threatened by the words written or spoken by the student.

Third, there is a requirement that threat be “unconditional.” Once again, an analysis of the statements which are basis for the disciplinary action can often undermine that the assertion was unconditional.

These three examples are some of the most common problems with terrorist threat school expulsion cases brought by school districts, but this list is far from exhaustive. There are many common mistakes that districts make and which an experienced attorney can leverage into either completely prevailing in establishing a child cannot be suspended or expelled or in reducing the consequences [contact-form][contact-field label=’Name’ type=’name’ required=’1’/][contact-field label=’Email’ type=’email’ required=’1’/][contact-field label=’Best number at which to reach you’ type=’text’ required=’1’/][contact-field label=’Comment’ type=’textarea’ required=’1’/][/contact-form] to something less severe.

School expulsion can have a permanent impact on a child’s future. If your child faces an expulsion hearing in Southern California, having proper representation can often be the difference between a successful defense versus a year-long removal from their home school. Please contact The Law Office of Gregory R. Branch if your child has been suspended or faces expulsion for making a terrorist threat. I offer flat fee expulsion rates so that there are no expensive surprises.

Orange County teachers’ attorney sues over union dues

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Two Orange County, California teachers are among a group of ten educators across the state who have sued seeking an end to having to pay mandatory California state teachers’ union fees according to their attorney.

The teachers’ argument is that California’s current “agency shop” law violates their First Amendment freedom of expression rights by forcing them to pay $1,000 per year that end up supporting political causes with which they do not agree.

None of the ten teachers are union members. Despite this fact though, all of them are required to pay an amount equal to teacher union dues under a law also known as the “fair share” law. It is premised on the idea that because unions are required to represent all employees, even those not belonging to the union, that all teachers should bear the administrative cost of such representation.

The teachers, through their attorney, are arguing that a 2012 Supreme Court decision suggests that they should not be required to continue to pay. The teachers are trying to extend the logic of 2012’s Knox v. Service Employees International Union, in which a 5-4 Supreme Court majority held agency fees permissible, provided that unions offer an opt-out method.

It is not contested here that teachers in California are indeed afforded an opt-out method. The process though, according to the teacher’s legal counsel, is cumbersome and rarely utilized. Given that decision, how do the teachers hope to win this case? In the 2012 case, conservative justices on the court suggested that they are open to the argument that such fees are inherently unconstitutional. The teachers hope to be able to sway a majority of justices over to that line of thinking.

Currently though, the case is not at the Supreme Court level. It was filed in a federal district court here in California. The attorney believes that the case could end up on the Supreme Court’s docket as early as next year.

Gregory R. Branch, Esq. is an Orange County special education attorney. He represents families in disputes with school districts in Orange, Riverside, and Los Angeles Counties. If you are currently engaged in a special education dispute, please contact his office at (714) 856-1166 or be emailing gregorybranch@edrightsadvocate.com.

Orange County special education attorney opposes AASA proposal

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DueProcessLaw

As an Orange County special education attorney, California, I am writing here to explain my opposition to the School Superintendent’s Association’s (AASA) recently released policy proposal Rethinking Special Education Due Process (RSEDP). I have a number of concerns with this document which I would like to address. First though, let me give a brief overview of the document’s purpose and policy proposals.

IDEA is the major law governing special education

law in school. It currently is past due for reauthorization, but to borrow a line from another special education blogger, Jim Gerl, “Congress is too busy ignoring other important issues at this time.” Since it stands to reason that Congress will indeed decide at some point to address this important piece of legislation, AASA produced RSEDP for the purpose of influencing the conversation around what sort of changes should be included when that gets done.

In a nutshell (for a longer discussion of what RSEDP contains, read my article on 

Examiner.com), AASA is proposing a complete overhaul of the dispute resolution section of IDEA. Under its proposal, due process hearings (DPH) would be eliminated, mediation would no longer be binding, and parents would no longer be allowed to be represented by attorneys or advocates during mediation. In place of DPHs, AASA recommends two alternative procedures, facilitated IEPs and a “consultant IEP process.”

Facilitated IEP: A facilitated IEP would be used to resolve disputes before a formal due process complaint has been filed by bringing in an outside contracted “state-approved, trained IEP facilitator” who would be a “neutral, state-provided, trained facilitator.” The facilitator would attempt to help the district and parents reach agreement before legal paperwork is filed. Personally, I do not have any issue with the addition a facilitated IEP when an IEP between the district and the parent fails to reach agreement. Such a system can help solve problems before they become larger and more personal.

Consultant IEP Process: If a formal due process complaint has been filed and mediation failed or if one of the parties believed that mediation would be fruitless, the parties would be required to select “an independent, neutral special education consultant designated by the state to review evidence of the child’s disability and advise the parties on how to devise a suitable IEP.” The consultant would have 21 days to collect all the necessary information and design an IEP to be given to the parties. Both parties would agree to honor the IEP for an agreed upon period of time. If at the conclusion of that time period either party was dissatisfied with the consultant’s IEP, that party could litigate their claim in court.

As a special education attorney here in Orange County, Calfornia, following are some of the major objections I have to AASA’s proposal.

This is a Civil Rights Issue

The reason why IDEA was enacted over thirty years ago was to protect the civil rights of disabled students. AASA argues that these protection can now be watered down because of increased government oversight of special education programs due to mechanism within IDEA 2004 and No Child Left Behind (NCLB). I strongly disagree. Yes, these measures have increased oversight on the overall special education system. Under NCLB, districts are required to report on the overall academic achievement of their disabled students and schools and districts can face sanctions for not meeting nation-wide standards on these measures. It is also true that IDEA 2004 requires districts to report on numerous performance and compliance measures. Failure to comply with these rules can lead to a loss of significant federal dollars.

Yes, these things are true. However, these are macro measures not micro measures. They ensure the system is working as a whole; these laws do nothing to ensure that a district is meeting the needs of an individual child. It is not enough to say to a parent that district children are advancing, but sorry, the IEP for your child does not ensure a free and adequate public education. Each parent and child count, so to undermine the system supporting their right to challenge a district premised on the notion that the overall system as a whole now has greater accountability simply is insufficient. Civil rights are there for the individual. It is not enough to argue that we are meeting the needs for some percentage of individuals; the system is there to protect each individuals right to an education.

Unfairly Tilting the Balance of Power

After reading AASA’a RSEDP, I walked away with the strong suspicion that AASA was trying to place its thumb heavily upon the balance of power that currently exists between parents and districts. The proposal seeks to strip parents of the right to representation during mediation. While I know lawyer-bashing is an American past-time, lawyers and advocates serve an important role in special education mediation. Keep in mind what such a mediation would often look like. During mediation, a highly-trained district office administrator, many of whom who hold doctorate degrees in education or more specifically special education, would be facing a parent who is generally lacking in knowledge about education in general and also special education law. There is a gross mismatch in terms of understanding of the system and its rules and regulations. Such a situation literally invites district overreaching.

The AASA report states the use of attorneys has limited the effectiveness of mediation because their presence “complicates and compromises the outcome of mediation.” I was interested in following up on this quote and the context in which it was given but was unable to do so because the footnote is incorrect. It states the author of the quote is Mueller and states she is cited at 58. She is not. She is cited several times in the report, but the articles as cited are not accessible unless one is a subscriber to a service. That said, what attorneys provide is knowledge of their client’s rights. If advocating for their client “complicates and compromises the outcome of mediation,” then I would argue the suggested outcome was not a fair one for the parent or, more importantly, the child.

Given the above, it appears that AASA basic proposal is that its members should enter mediation with knowledge and authority while parents should not. They believe that when parents have knowledge of their rights through advocacy that it only complicates the process. Our disabled children deserve a better philosophical approach then AASA is offering here.

A Solution in Search of a Problem

A final issue of mine with the proposal is that it is a solution for a non-existent problem. While the proposal attempts to paint due process hearings as a major source of problems for school districts, the report’s statistics clearly show that DPHs are not. The statistics given here were collected by AASA for use in this proposal. 200 randomly selected school superintendents were surveyed about the impact of the due process hearing system on their respective districts. Of those 200 superintendents, 99 reported that their district had not been engaged in a single due process hearing during the last 5 years. 29 reported having one due process hearing in the last five years, 44 reported having between 2 and 5, 14 reported between 6 and 10, and 6 had 11 or more.

The reality is that when almost half the respondents do not report a single DPH and of the remainder, 3/4 had been involved in less than 5, this is not a significant issue. Also, keep in mind when reading these statistics that AASA did not ask whether the district had prevailed, lost, or had a mixed ruling of losing on some and winning on some of the issues. While it is true that districts prevail more than they lose, a large number of these DPH cases were cases where the parents prevailed because the district involved was not doing its job.

Based on this reasoning, districts are facing a very small number of cases in which the parents do not have a legitimate issue of contention with the district’s proposed IEP or implementation of an actual agreed upon IEP. Also, just because the district won (or the parent for that matter), does not mean that there was not a legitimate question that needed to be resolved. Thus, doing away with DPHs when there are so few of them across the nation is a solution for a problem that does not exist.

Conclusion:

I could go on with other arguments, (effect on the court system, the idea that stress on school personnel is a valid reason to lessen disabled children’s civil right, etc…) but the above should be sufficient to show that AASA’s proposal is flawed and should not be followed. Our disabled children need protection. One only needs look back to the system that existed prior to IDEA where only 20% of our disabled children were even being educated to know that IDEA and its protections serve an important purpose. IDEA is an important civil rights tools and should not be watered down based on the flawed reasoning displayed in RSDEP.

For another thoughtful criticism of this proposal by Mary Richard, a special education attorney, click here.

Gregory R. Branch is an Orange County attorney who practices in the area of special education. If you are having a dispute with your local school district, please call him at (714) 856-1166 or email him at gregorybranch@edrightsadvocate.com.

 

 

 

District special education litigation costs become more transparent in California

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The California Supreme Court recently upheld and certified for publication a non-special education case that has important ramifications for special education across the state. For years, the special education litigation costs for districts have been a closely guarded secret. In fact, when I interned with a special education attorney representing districts some years ago. I was handed a document that listed costs per district and was expressly told to never release the information (which I will not) and told that districts never want the information to get out to the public.

Now though, everyone who is interested should be able to gain access to this information. In County of Los Angeles vs. Anderson-Barker, California’s Supreme Court has published that the main legal basis given by districts does not hold water and such information will have to be released if districts are presented with a proper request for the information. In the case, an attorney sought litigation cost expense in an on-going civil rights matter currently being heard in the courts.

Requests for information from state public agencies are covered under the California Public Records Act, (CPRA). This law was enacted in 1968 and modeled after the federal Freedom of Information Act (FOIA). The purpose of the CPRA is to increase “freedom of information by giving members of the public access to information in the possession of public agencies.” Like the FOIA, this law creates specific exemptions which public agencies can cite in order to avoid revealing information considered sensitive. When parents or attorneys request that districts and or Special Education Local Plan Agencies (SELPAs) turn over litigation expense information, district have blocked such requests using three specific exemptions from CPRA: 1) attorney-client privilege; 2) attorney work product doctrine; and 3) the pending litigation exemption.

In this decision, which focused on the pending litigation exemption, the court made quick work of the County’s arguments not to disclose the information. According to the court, under CPRA, the pending litigation exemption applies to documents prepared specifically for litigation. Billing statements and the like, while related to the litigation, are not covered because the information was not compiled for litigation but rather for billing purposes related to getting paid. The court stated, “this is true even though the requested records relate to pending litigation and, indeed, would not have existed but for the pending litigation.” Based on this decision, school district special education litigation costs will become more transparent, because districts have long used this same argument to block requests for litigation expense information.

For a more thorough explanation of the decision, read my Examiner.com article on the same issue.

Due process required to revoke inter-district transfer

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A federal court has ruled that under existing Kentucky law, a school district must provide due process when revoking an inter-district transfer once it has been granted for that school year.

In G.C. v. Owensboro Public Schools, a panel of the U.S. Court of Appeals for the 6th Circuit ruled 2-1 that a student’s due process rights were violated when the school district terminated his inter-district transfer for disciplinary reasons without a hearing after the transfer had already been granted and the child had begun attending school.

In the case, a student identified as G.C. began attending Owensboro Public School District at the start of his 7th grade year in 2005 under a reciprocal agreement with Daviess County Public School District, his district of residence. This agreement is governed by Board Policy 09.125 which provides in pertinent part, “The continued enrollment of non-resident students in the District’s schools is subject to the recommendation of the school Principal and the approval of the Superintendent.”

Per court documents, G.C. began having disciplinary problems during his freshman year at Owensboro High School. In September of that year, G.C. was given a warning for using profanity in class. In November of 2008, G.C. was warned about excessive tardies to class and also disciplined for fighting and arguing in the boys’ locker room. During that same school year, in March, 2009, G.C. walked out of a meeting with the prevention coordinator for the high school.

School officials convened a hearing with G.C. and his parents regarding that last incident and G.C. was placed on probation and given a four-day in-school suspension. In just under a month G.C. was again suspended, this time for yelling and hitting a locker. At the end of the 2008-2009 school year, the school principal recommended to the district superintendent, Larry Vick,  that G.C.’s inter-district transfer not be renewed. Vick chose not to follow that recommendation and instead had a meeting with G.C.’s parents to discuss conditions for G.C.’s continued attendance at Owensboro High School. Per Vick’s testimony, at the meeting the parents were informed that any further disciplinary actions would result in G.C. not being able to continue attending the high school.

With this understanding, G.C.’s parents re-enrolled him at the high school for the 2009-2010 school year. Despite this agreement though, on September 2, 2009, G.C. was caught violating the school’s cell phone policy by texting during class. Based on this incident, the principal recommended to Vick that G.C.’s inter-district transfer privilege be revoked, and Vick agreed. G.C.’s parents were shortly thereafter informed of the revocation and informed that they could appeal the decision. After a meeting with the parents, their attorney, and the superintendent wherein they were informed that the revocation would stand based on the fact that G.C. “had violated the condition of his out-of-district privilege to attend Owensboro High School by texting in class,” the parents filed suit on a number of different grounds, including a denial of due process. The parents lost in federal district court but prevailed before the 6th Circuit.

In analyzing the case, the court began by noting Goss v. Lopez which held that the 14th Amendment’s Due Process Clause applies to suspension or expulsion from school where a state has conferred a property interest in public education. As is true in most if not all states across the United States, in Kentucky, a hearing is required before an expulsion can occur unless the student’s presence is dangerous or disruptive. Where a student is deemed dangerous or disruptive, a hearing is still required, but the student can be suspended from school pending the outcome of the hearing.

Both the state of Kentucky law and Owensboro Public School district regulations have expressly adopted regulation that states that expulsion from school requires a hearing. Here, it is undisputed that G.C. did not receive a hearing; it is disputed whether G.C. was expelled. While G.C.’s attorneys categorized the removal from Owensboro as an expulsion, the district argued what occurred was not an expulsion but a revocation of his right to Owensboro as an out-of-district student.

The lower court decision held that the district’s board policy governing inter-district transfers gave the district unfettered discretion to the superintendent to remove an out-of-district student like G.C. at any time. The 6th Circuit disagreed with this assessment. It drew a bright line between attendance and enrollment. The board policy (see 3rd paragraph above) applies only to enrollment. The court noted that Kentucky distinguishes enrollment from attendance. Enrollment, the court stated, occurs when the student registers at the beginning of the school year. Attendance, rather, is the on-going ability to attend the school once a student is enrolled. Thus, by revoking G.C.’s ability to attend Owensboro Public School, the district had de facto expelled G.C. from his high school and in violation of its own policy had done so without a hearing.

If you believe that your child’s transfer has been terminated unjustly, please contact The Law Office of Gregory R. Branch by emailing gregorybranch@edrightsadvocate.com or phoning the office at (714) 856-1166.

Suspicion-less use of drug sniffing dogs in schools held okay by 8th Circuit

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A Federal Court of Appeals has just upheld the use of drug sniffing dogs where a student claimed his constitutional rights were violated by his forced separation from his belongings in order that a dog drug sniff could take place.

The United States Court of Appeals for the Eighth Circuit ruled in favor of a Springfield, Missouri, school district and two of its administrators in a suit alleging that its policy of having students wait outside of a classroom while drug sniffing dogs swept the classroom for illegal narcotics represented an unconstitutional seizure of the student’s possessions.

The suit, Burlinson v. Springfield Public Schools,  was brought about when Springfield police arrived at Central High School during the 2010 school year. They were there to perform a random drug sweep in accordance with school police services’s standard operating procedure 3.4.1. Under that policy, certain randomly selected rooms are chosen to be sniffed by police dogs trained to identify belongings containing illegal drugs. Per the policy, a policeman entered the room of C.M., the child whose parents brought this suit, and informed the students that a random drug sweep was going to occur. The students were instructed to exit the room, leaving their personal belongings in place. C.M. left his backpack and books in the room as instructed and went into the hallway where he could no longer see his belongings.

After all students had exited., a deputy sheriff took the drug dog into C.M.’s classroom. The students were out of the room for approximately five minutes before they were allowed to return. The dog did not alert to any drugs during the search, and the students reentered the classroom. C.M. alleges that it felt as if his bag had been opened, but the zipper was still closed and he offered no proof of this assertion.

These searches took place at the request of Springfield Public Schools (SPS). In 2009,  SPS contacted the Greene County Sheriff’s Department to request random drug sweeps during the 2009-2010 school year. The policy under which this search occurred had been implemented to address a known drug problem.

The crux of the legal case was whether separating the student from his belongings constituted an unconstitutional seizure of his personal belongings. The Fourth Amendment protects the “right of the people to be secure in their personas, houses, papers, and effects, and against unreasonable searches and seizures.” Under the Fourth Amendment, a seizure of property must be reasonable, with reasonableness tested based on the context under which it occurred.

In order to determine whether SPS violated C.M.’s Fourth Amendment rights, the court “conducted a fact-specific balancing of the intrusion on the child’s Fourth Amendment rights against the promotion of legitimate government interests.” In ruling on this matter, the court appeared to leave unanswered whether separation from his belongings even constituted a seizure. In reaching its conclusion, the court stated,

Assuming that C.M.’s belongings were seized in this case when the school police officer directed that they be left in the classroom for approximately five minutes while the drug dog survey occurred, we conclude that the seizure was part of a reasonable procedure to maintain the safety and security of students at the school.

In a concurring opinion, one justice argued that this separation does not even rise to the level of a seizure. Stating that a seizure occurs when there is “some meaningful interference with an individual’s possessory interests in that property,” there must be some circumstances under which the interference is merely inconsequential. Given this interpretation, Judge Loken argued that no government seizure took place at all.

Regardless though, under the assumption that a seizure did in fact take place, the seizure here was not unreasonable. The court noted that k-12 public school students do not possess the same expectation of privacy as does the general public. Here, this brief separation from C.M.’s property was for the purpose of avoiding potential embarrassment to students, ensuring that students are not targeted by dogs, and decreasing the potential for potentially hazardous interaction between the police dogs and children.

The court also noted that C.M. freedoms were not “unreasonably curtailed” in that he did not possess full freedom of possession with his property even before the search. Students can be required to not touch their possessions, be required to leave them outside the room, or to leave it in a secured area for school activities.

The court also noted that the government possessed a legitimate interest in keeping drugs out of schools. SPS provided “substantial evidence” to show that there was an illegal drug issue within the district. SPS provided evidence to the court regarding the number of drug related incidents over the last 11 years. C.M. himself testified that he believed that there was and is a drug problem at his school.

The court also quickly dispensed with the parents’ argument that the search was unconstitutional because the seizure was not supported by individualized suspicion, noting that the Supreme Court has rejected the ideas “that all searches or seizures in a school must be supported by individualized suspicion.”

 

Calif. special education teachers sue their school district over workload

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As reported at appealdemorcrat.com, a group of four California teachers have sued the Yuba City Unified School District (YCUSD) over their high caseloads of special education students.

The teachers allege that their current assignments violate state law with regard to maximum caseloads for California’s Resource Specialist Program (RSP) teachers. At the heart of the issue is whether other at-risk students who are not in special education count in the teachers’ case loads. Yuba City is using a blended services model, and the outcome of this case could have impacts around the state.

According to the suit, YCUSD assigned the teachers to teach classes to groups of students containing both regular and special education children. In counting the teachers caseloads, which by law cannot exceed 28 students, the district decided that the non-special education children taught by these RSP teachers do not count as part of their case load. The four teachers also contend that assigning their services to both regular and special education students simultaneously is also a violation of state law.

According to the associatedemocrat article, the Superintendent, Nancy Aaberg, stated that many districts around California are looking for the best way to provide services to students on IEPs. In the past, special education students often were sent to special education classrooms to receive specialized educational services. More recently, districts are experimenting with having RSP enter classrooms in which RSP students sit side-by-side their typical peers and receive assistance within a regular education class.

In the legal filing, the teachers’ attorney states that she sent two letter to YCUSD and met with school officials to resolve the matter prior to filing the lawsuit.

 

The effects of bullying last into adulthood

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(February 21, 2013) A long-term study released Wednesday by Duke University supports earlier research that the effects of bullying last into adulthood. Significantly, the new study represents 20 years worth of work on the part of the researchers.

In the study, 1,400 children ages 9, 11, and 13 were interviewed. During these interviews, the children were asked about their experiences bullying or being bullied. After sorting their responses, it was determined that 5% were children who solely bullied others and were not bullied themselves, 21% were exclusively victims of bullying, and 4.5% were both bullies and bullied at various times.

Read the rest of my article at Examiner.com.