Tag Archives: school discipline

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.

 

What is a manifestation determination meeting?

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If you are seeking out this information, your child is likely in trouble with his school district. Additionally, your child is in special education, because this issue deals with children under the umbrella of special education. A manifestation determination meeting is very serious because it means that the school district is attempting to change your child’s placement or place your child on a lengthy suspension .

What is an manifestation determination? If a school district wishes to force a change of placement or suspend a child for an amount greater than 10 days, it must conduct a manifestation determination. The term itself means that the district must decide (determination) if the conduct which was the reason for the sought after discipline was a result (manifestation) of the child’s disability. If it was not, then the suspension/change of placement may proceed. If it was, then it may not. The reason for this is simple. If the behavior was caused by the child’s disability, i.e. impassivity, then the child was really not in control of their actions and the discipline would be unwarranted.

What is the process? A manifestation determination looks like an IEP team meeting, although there will likely be more school district personnel in attendance.

How will the decision be made? The district will investigate the incident itself. In order to do this, it will look at evidence, talk to witnesses, interview any victims, talk to the administrators and school personnel who have knowledge of the incident and its surrounding circumstances. Second, the district will review relevant information regarding the child and his disability already known to the district. In other words, they will review the student’s educational records, including the child’s cumulative file, their special education documentation, any information from  Student Study Team meetings and the like. Once this step is completed, the IEP team must then make its determination.

What questions are asked to determine if the behavior is a result (manifestation) of the child’s disability?There are two questions that must be answered.

(I) if the conduct in question was caused by, or had a direct and substantial relationship to, the child’s disability; or

(II) if the conduct in question was the direct result of the local educational agency’s failure to implement the IEP.

If the local educational agency, the parent, and relevant members of the IEP Team determine that either subclause (I) or (II) is applicable for the child, the conduct shall be determined to be a manifestation of the child’s disability.

(F) Determination that behavior was a manifestation.–If the local educational agency, the parent, and relevant members of the IEP Team make the determination that the conduct was a manifestation of the child’s disability, the IEP Team shall–

(i) conduct a functional behavioral assessment, and implement a behavioral intervention plan for such child, provided that the local educational agency had not conducted such assessment prior to such determination before the behavior that resulted in a change in placement;

(ii) in the situation where a behavioral intervention plan has been developed, review the behavioral intervention plan if the child already has such a behavioral intervention plan, and modify it, as necessary, to address the behavior; and

(iii) except where there are special applicable circumstances, return the child to the placement from which the child was removed, unless the parent and the local educational agency agree to a change of placement as part of the modification of the behavioral intervention plan.

Are only special education children subject to manifest determination requirements? No, in limited circumstances, children not in special education may also be protected.  If the district has knowledge that the child has a disability, then a manifestation determination is necessary before a lengthy suspension or change of school placement.

When does a school district have knowledge that a non-special education student is disabled? A district is attributed such knowledge under three circumstances: 1) when a parent has in writing expressed to the district that the child needs services; 2) when a parent has made a written request for special education testing for the child to the district; and 3) when school personnel have expressed specific concerns about a problematic behaviors directly to the director of special education for a district or supervisory personnel.

If your child has an upcoming manifestation determination meeting, it would be wise to consult with an attorney in order to protect your child’s rights. You may contact The Law Office of Gregory R. Branch at its website, by email, gregorybranch@edrightsadvocate.com, or by phone at (714) 856-1166.