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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 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.

 

 

 

$1M judgment for racially bullied special education student

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In a victory for bullied school students that was aided in part by the Obama administration, a federal court of appeals has upheld a million dollar verdict that had been appealed by a New York state school district. It must now pay for the deliberate indifference that it exhibited as one of its students endured years of racial harassment. The Obama administration contributed to the case by filing a friend of the court brief, arguing on behalf of the lower court’s decision and that school districts can be found financially liable when they fail to take action reasonable efforts to end known student-to-student harassment.

Read the rest of my article here.

ACLU files unprecedented class action law suit against Michigan school district

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Highland Park High School (Credit: Educationnews.org)

The ACLU has filed an unprecedented class action law suit claiming that various Michigan state entities have failed to meet the requirements of providing remedial reading strategies to struggling readers. The named defendants in the suit are the State of Michigan, the State Board of Education, Michigan Department of Education, Michael Flanagan, Michigan’s Superintendent of Public Instruction, Joyce Parker, Emergency Manager for the Highland Park School District, and the Highland Park School District (HPSD) itself.

The lawsuit seeks the “immediate implementation of of MCL 380.1278(8), which provides every regular education student who does not show proficiency on the reading portion of the Michigan Educational Assessment Program (MEAP), the State’s standardized reading proficiency test, in 4th or 7th grade shall receive ‘special assistance reasonably expected to enable the pupil to bring his or her reading skills to grade level within 12 months.'”

The complaint presents an incredibly tragic picture of the educational conditions and opportunities with HPSD. As alleged in the suit, two thirds of all students do not have the basic literacy skills necessary to meet ground-level standards of proficiency. According to the State of Michigan’s own data for HPSD, only 35% of 4th grade students in HPSD scored “Proficient” or higher on the MEAP reading test and only 25% of 7th grade students scored proficient or higher. Despite these dismal results, HPSD has violated MCL 3801278(8) by failing to provide the state-mandated remedial reading programs necessary to address these deficits.

According to the suit, despite these horrible numbers, HPSD has simply refused to provide its students the state-mandated remedial reading programs which would help address these deficits. When Michigan’s Department of Education was sent questions to answer prior to the filing of the class action, one specific question asked the district to provide documents relating to the reading intervention programs designed to meet the requirements of MCL 380.1278(8) or otherwise provid[ing] remedial reading instruction, its official response was, “To the best of my belief and knowledge, the Michigan Department of Education does not possess the documents you requested.”

The lawsuit alleges critical deficiencies in HPSD’s instruction and facilities. In the suit, it is alleged that there are insufficient textbooks to allow students to take books home, all copies must be made at teacher’s expense, there is inadequate heating to the extent that students must wear parkas and mittens in the weather, there exists inadequate academic support since the schools have neither counselors nor vice principals, the bathrooms are not properly maintained, often having walls smeared with feces, the library is inadequately supplied with books and students are not allowed to check the ones that are there out.

HPSD is a small school district in close proximity to Detroit. The city of Highland Park has 11,776 residents, the vast majority of whom are African American. Of the 973 students enrolled in HBSD, 99.59% are African American. Additionally, 82% qualify for Federal Free or Reduced Lunch program. In other words, this is a poor, African American town located next to Detroit.

The most heartbreaking thing detailed in this suit are the comments of the children named in the suit. The students were given a written prompt to asking them to tell the Governor about the school. Following are a few responses. Fourth grader D.I. wrote, My name is (deleted) this is what I what to do when I what grow up at Bussness laddy And can you give my a favorite By helping me to work my way up to keep up Jobs. C.M., a 6th grader, wrote, Well we can have playtime. And write lot of things. And read books. And have fun. The state goverment will come and come to the school. Tell the Teacher what to do! To help. A final example comes from F.C., a 7th grader, wrote, Hi My is (deleted) and i go the school at Barber focus and i would like you to make Better reading Books and cleaner water and supply for the classroom.

Almost as heartbreaking are the tales of the students about quality of instruction they receive in reading. L.M. reports that he was enrolled in a class titled “Virtual Learning English Arts.” In this class L.M. answered questions on the computer for the entire course. While he and his classmates worked on the computer, his teacher graded papers or completed other tasks on her computer. The teacher never lectured or used the blackboard for instruction. F.C. reports that he took a class called Read 180. The class contained 30 students who were split into two groups. While one group read aloud, the other group accessed self-directed work on the computer. The teacher never provided direct instruction.

If the ACLU’s suit is successful, Michigan and HPSD will need to institute quality remedial reading programs in this small, urban district.

Proportion of special needs children in public schools increasing

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Public education advocates have long worried and complained that the school choice movement will make public school campuses largely places where only those lacking in the resources to attend better schools will be educated. Recent statistics seem to be supporting this argument. In an Associated Press piece today, Christina Hoag reported on how the proportion of special needs children in public schools is increasing. This is happening not because of increased identification of special needs children but rather because other students are increasingly opting “for alternatives that aren’t readily open to those requiring special education.” Read the rest of the article here. To learn more about how charter schools are difficult to get into for special education students, click here.

Court rules no assault where student threatens school administrator

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The state of Florida’s 3rd District Court of Appeal held that a student had not committed assault on a school administrator in violation of Floridalaw despite the fact that he said, “You’re going to die today, bitch; something is going to happen to you after school; you watch.” The court held that the student’s comments and actions did not meet the third prong of the law’s requirement: (1) an intentional, unlawful threat; (2) an apparent ability to carry out the threat; and (3) creation of a well-founded fear that the violence is imminent.

Section 784.01(1) of Florida Statutes states:

An assault is an intentional, unlawful threat by word or act to do violence to the person of another, coupled with an apparent ability to do so, and doing some act which creates a well-founded fear in such other person that such violence is imminent.

In its holding, the court states, “the record is devoid of is devoid of any evidence to show H.W. (the defendant) did any act to create a well-founded fear by Jones (the school administrator) that violence was imminent.

The facts of the case are as follows. Jones, an administrative assistant atParkwayMiddle Schoolcalled H.W. up to her office for a disciplinary infraction. Based on that infraction, Jones informed H.W. that he was being suspended for three days. According to court documents, when H.W. was informed of the school suspension, he became agitated and verbally abusive. Jones testified that H.W. began cussing at her, calling her a “bitch,” shouted “f_ _ _ you,” and began pacing back and forth in her office with his shirt raised. H.W. ended up leaving Jones’ office but returned in less than an hour. A school security officer, Hector Martinez, was stationed outside Jones’ door when H.W. returned.

Upon reentering her office, H.W. again began making threats. He told her he was going to ensure she got “put to sleep.” Officer Martinez testified that he heard H.W. tell Jones “You’re going to die today, bitch; something is going to happen to you after school; you watch.”

When asked if she was afraid at the time, J0nes testified, “In a way, I was afraid because…H.W. is a violent individual.” Jones further testified she “thought” H.W. would have hit her and that was why she had called to have Officer Martinez present.

The court held that H.W.’s threats did not create a well-founded fear that H.W. would do something to Jones at that time. When Jones called for Officer Martinez to come into her office, she “did not raise her voice to shout for help, but instead calmly called for Officer Martinez” who was sitting outside her door. The court concluded that the fact that Jones thought that H.W. might reach across the desk and hit her and H.W.’s threat that something would happen “that day” were insufficient to show violence was imminent.

Categorizing the new face of cyberbullying

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Today, children are not able to escape from bullying the way they were able to in the past. When I was growing up, the moment you reached home, the bullying stopped. Unfortunately, that is not the case for our children today. In the Internet age, the abuse shoveled upon targets can escalate at home and often dwarfs the bullying they receive at school.

What are the various types of bullying that occurs online?

Flaming: Flames are angry, rude arguments that occur online. It is typically a string of rude, hostile messages that frequently contain vulgarities.

Denigration:  This is the “dissing” someone online by spreading rumors or posting false information.

Outing and trickery: This is when embarrassing, private information is disseminated online. The private information is sometimes obtained through trickery, which is why the definitions are combined here.

Impersonation: This occurs when someone pretends to be someone else and posts material which is damaging to that person’s reputation.

Exclusion: This is a very typical mean girls action in which a person is intentionally excluded from an online group.

Online polls: This is when a polling type question is used hurtfully to encourage others to talk badly and/or speculate about a target. Poll questions such as “How many sexually transmitted diseases do you think Emily has?” will be posted for people at the school to respond to.

Cyberstalking: Here, a person creates fear in their target by sending offensive messages and engaging in harmful online activities.

Text barrages: This is where a single target is literally besieged by text messages night and day. Sometimes multiple classmates will agree to deluge the target with a near ceaseless torrent of hatred and foul comments.

If your child is being assaulted at home or at school by bullying, please contact the Law Office of Gregory R. Branch for help.  714 856-1166 or email at gregorybranch@edrightsadvocate.com