Category Archives: School discipline

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.

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.”

 

8th Circuit holds student racist/sexist blog speech unlikely to be protected

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Overturning a preliminary injunction issued by a lower court, the U.S. Court of Appeals for the Eighth Circuit handed down a ruling this week that a blog created by Missouri high school students containing both sexist and racist speech was unlikely to be First Amendment protected speech.

Lee Summit North High School

Lee Summit North High School
(Credit: edcampkc.wikispaces.com)

The three judge panel unanimously overturned a district’s court’s preliminary injunction which had allowed the Lee’s Summit North High School student creators of a blog to return to school pending a court decision on whether the speech on the blog was protected.

In the case, two twin brothers, Sean and Steven Wilson, created a website called NorthPress, part of which contained a blog. According to the Wilson brothers, the purpose of the site was to “discuss, satirize, and ‘vent’ about events at Lee’s Summit North.” Because they used a Dutch domain site, U.S. users were prevented from finding the website using a search engine. However, any person could access the website provided they knew the website address: NorthPress was not password protected.

During December, 2011, the twins added posts to the NorthPress blog which included a variety of sexist and racist content. The sexist comments went to far as to mention a fellow female student by name. The racist posts discussed various altercations that had taken place at the school and mocked black students.In addition, a third unnamed student added another racist post.

The exact degree to which the speech was off-campus was a matter of dispute in the case. It was shown during the case that one of the Wilson twins used a school computer for the purpose of uploading computer files necessary for the creation of their website. District records also show that the website was accessed two other days, but District was unable to prove who accessed the site or whether they merely looked at the site or contributed files to it.

In additional testimony, the Wilsons stated that they only told five or six other students about the site, but by December 16, 2011, the student body was definitely aware of the site’s existence, and school administrators became aware of it that same day. Following a brief investigation, the school suspended the two boys for ten days and referred them for expulsion. There ensued a hearing, then an appeal by the Wilsons, then a second hearing at the conclusion of which the Wilsons were suspended from Lee Summit North but were allowed to attend Summit Ridge Academy. The Wilsons filed suit seeking a preliminary injunction in order to lift the suspensions.

The District Court quickly conducted a preliminary injunction hearing. In the trial, the Wilsons argued that their website was satirical rather serious and that they were not racist. Further, they argued that their website had not caused disruption at the school. The boys testified that December 16, was pretty much like every other day at Lee Summit North. Their additional testimony related to the fact that attending Summit Ridge Academy was deny them the opportunity to possibly attain a band scholarship and also to take honors level classes.

During this hearing the District argued that student body wide discovery of the site had indeed caused substantial disruption. District argued that returning the boys to Lee Summit North would cause further disruption at the site and could endanger the boys’ safety.

A federal district judge ruled in the boys’ favor, holding that while the speech may not be protected, the boys were suffering irreparable harm by not being able to attend their regular school. Based on the March ruling, the boys were allowed to return to Lee Summit North.

The school district immediately appealed the lower court’s ruling. On October 17, 2012, the 8th Circuit issued its opinion in  S.J.W. v. Lee’s Summit R-7 School District, finding for the district and overturning the original preliminary injunction.

The court’s decision is in line with a number of Federal Courts of Appeals holdings addressing student off-campus speech which creates a campus disruption. Applying the Tinker standard, the court reasoned that here, while it was contested whether or not the speech occurred on campus or not, the speech had as its target the students of Lee Summit North. This, coupled with the fact that the speech had been found to have been responsible for causing a substantial campus disruption, meant the students’ speech was unlikely to be protected under the First Amendment, and thus the students’ discipline should remain in place pending an actual hearing to decide the issue.

In addressing the issue of irreparable harm to the twins, the 8th Circuit held that the school the boys were to attend was accredited and would allow the twins to graduate on time. Further, on the issue of college scholarships, the Court held that potential scholarships were too speculative in nature to constitute harm to the boys.

The case brought up another novel legal issue which the Court was able to dispatch without ruling on its merits. Attorneys for the twins argued that they could succeed on the merits of their case under the Communications Decency Act (CDA) which states in relevant part, “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” 47 U.S.C. § 230(c)(1). The gist of their argument was that as publishers of NorthPress,the boys were merely providers of a computer services, NorthPress, and they cannot be held responsible for the content of the third student’s racist post, which they contended during the case that if there was a disruption, it was due to that post, not theirs.

The three judge panel made no determination as to whether the CDA applied here, since the point was moot. The lower court had found that the twin’s post had been disruptive to the school, not just the single post of the third student. This being true, the CDA would not apply.

In the end, the decision of what is to happen to the boys pending a final decision on their case was left to the lower court.

Supreme Court declines to hear zero-tolerance case

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The U.S. Supreme Court has turned down a case involving application of a school district’s zero-tolerance policy regarding weapons to a student who shot spit wads in class. With its decision, the six-month school expulsion stands since the student has no further recourse.

In 2010, Andrew Mikel was a freshman at Spotsylvania High School in Pennsylvania. During lunch one day, he made the unfortunate choice to shoot small plastic pellets from the broken tube of a ball point pen at three students during the break. While the victims in the incident did report that the pellets left red marks, no one was injured by Andrew’s actions.

Andrew Mikel II and his father (Credit www.fredricksburg.com)

At first, Andrew was given a 10-day suspension, but the school board later voted to extend the suspension citing the district’s zero-tolerance policy for weapons policy which states that students who use a weapon to threaten, intimidate, or injure another student are subject to expulsion for a 365 period absent extenuating circumstances. Their actions did not stop even there though. The district referred the incident to the criminal courts where the honor student was accused of assault. Andrew was required by the court to attend a diversion program and took anger management classes and substance abuse classes.

In all this, the fact that the student was an honor student who wrote letters of apology to each of the victims and also offered restitution to the families in the form of raking leaves at their homes seems to have never been taken into consideration.

The lower court, despite upholding the school board’s decision, noted in its holding the absurdity that Andrew could be expelled for shooting spit wads, but if he had instead simply walked up and punched a student in the face, the maximum punishment would be a 10-day suspension.

It is a shame that the court declined to take up the case. This is another example of how zero-tolerance policies are being used in ways that make zero sense and children’s lives are being harmed in the process.

In this case, Andrew, an honor student, was preparing himself to gain entrance into the U.S. Naval Academy at Annapolis. Now, due to the criminal charges and his expulsion, that dream is shattered. He has been informed that based on this incident and the ensuing disciplinary actions, it is virtually impossible for him to pursue his dream. Due to this, he has now decided to try to get into the Virginia Military Institute instead.

If schools are going to continue to attempt school expulsions for disciplinary infractions of this sort, more court cases are sure to follow. While everyone wants schools to be safe, expelling this student in this case does nothing to advance that goal. The students were never in danger, nor was it even argued that the student intended to cause bodily injury to the other students.

While this student is out-of-luck, it can be hoped that the Court will take up such a case in the future and give guidance on the appropriate uses of zero-tolerance in school.

Mikel family discusses case (click to go to YouTube video)

 

Elementary students suspended based on sexual charges

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Child convict

Because of a case I have been working on, I have recently been looking into young children being suspended and or expelled from schools based on charges that they broke school rules with regard to sexual behavior. To this mix is the story coming out of Aurora, Colorado, involving a lively young boy who has been suspended for the “sexual harassment” of one of his female students. What sort of harassing behavior did the boy engage in? He was found to have been singing LMFAO’s song, “I’m sexy and I know it.” While school officials assert that the boy was singing the song to a girl, the boy’s mothers states that he was simply singing in the lunch line. My question is, “Does it matter?”

I would argue that even if the boy was singing the song to the little girl, his actions do not constitute sexual harassment. According to Equal Rights Advocates, there are two types of sexual harassment that occur in schools. The first is quid pro quo. This occurs where a person in authority offers a student some advantage in exchange for sexual favors, i.e. if you sleep with me, I’ll make sure you make the cheer-leading team. There is certainly no argument that this occurred between the young Colorado student and the female to whom school officials assert he crooned his song.

The second type of sexual harassment is hostile environment. This occurs where due to unwanted comments, touching, or gestures, a student is prevented from benefiting from their education. It is important to note that sexual harassment is perceived through the eyes of the person receiving the message, not the person who delivered it. Further, this type of harassment is almost always on-going. It occurs over an extended stretch of time. The exception to this is egregious examples of sexual harassment such as sexual battery or the like.

Here, once again, the facts do not support this six year-old being suspended. First, it is hard to imagine that the girl who was being serenaded, if you believe school officials, had her education experience so tainted that she was unable to benefit from instruction. Secondly, although I do not have access to all the facts, I find it difficult to believe that the young girl even perceived the song as a sexual overture. Such a thought is not in the nature of young children of this age.

School officials need to be mindful that the adult context of sexual offenses does not translate well at the elementary school level. Another California case illustrating this trend occurred in Hercules, California where at Port Lupine Elementary School, a first grader was suspended for sexual assault when, allegedly, his hand grazed the other boys private areas during a game of tag. The parent of the suspended child posted about it on school law blog and a massive uproar ensued, and the school eventually backed down.

It is important to note that the education code that defines what sexual battery is refers to specific sections of the California Penal Code. In order for a child to guilty of sexual battery, they must have committed one of five VERY serious crimes.(n) Committed or attempted to commit a sexual assault as defined in Section 261, 266c, 286, 288, 288a, or 289 of the Penal Code or committed a sexual battery as defined in Section 243.4 of the Penal Code.

 

(n) Committed or attempted to commit a sexual assault as defined in Section 261, 266c, 286, 288, 288a, or 289 of the Penal Code or committed a sexual battery as defined in Section 243.4 of the Penal Code.

 

Section 261 is the law regarding forcible rape. Section 288 is a lewd or lascivious act against a child. Section 266c is obtaining sex through false pretenses of by threat. Section 289 is forcible penetration with a foreign object. Section 243 is sexual battery. It is important to note that nearly all the statutes include a requirement that the action must have been undertaken for the purpose of sexual gratification, which at most ages of elementary school students is simply not possible. Generally, it is acknowledged that a person must have begun puberty to possess such an intent.

If your child has been suspended and or is up for expulsion due to a sexually related offense, it is important for you to protect your child’s rights. Having a suspension or expulsion for sexual violence or harassment on your child’s academic record can have far reaching consequences. Please contact The Law Office of Gregory R. Branch if your child is facing such a disciplinary action.

 

Special education discipline rights for unidentified students

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Get out of our school district (credit: thebiggestnews.com)

 

School discipline is more complex than many people might think. At the end of the day, it is a legal process governed by state and federal laws. As with all creatures of law, the questions that come up can be quite complex. One particularly thorny issue is when a school disciplines a child who is not labeled as special education but for whom there exists a basis for reasonable suspicion that the student might indeed be a special needs student. Read the rest of my Examiner.com article here.