Category Archives: Expulsion

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.

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.