‘My Child Just Got Expelled’ – What Every California Parent Should Know About School Discipline

New America Media, News Feature, Carolyn Goossen Posted: Jun 27, 2007

Editor’s Note: When it comes to suspensions, expulsions, and police arrests on school campuses, what are students’ rights? NAM education writer Carolyn Goossen interviewed Juniper Lesnik, attorney with the ACLU of Northern California, about the rights of students and parents dealing with disciplinary issues in public schools.

If my child has been suspended and I don't feel he or she deserves this punishment, what can I do?

Suspension and expulsion are punishments of last resort even when a student has broken a school rule. First, check to make sure the school followed all the right procedures. Before being suspended, the student is entitled to an informal conference (i.e. a chat in the principal’s office, where parents don’t need to be called.) At this time, they should be told why they are being disciplined and be allowed to give their side of the story. Parents must be notified of the suspension in writing. If you feel your child was suspended in violation of his or her rights, try contacting a legal organization such as the ACLU or Legal Services for Children.

What if my child is told that he or she will be expelled?

Before being expelled, a student is entitled to a hearing. (A “hearing” is a formal meeting with an administrative panel or selection from the school board who will hear the evidence on each side and make the decision on expulsion). The student must be given written notice of the hearing at least 10 calendar days in advance. This notice must include the date and place of the hearing, statement of specific allegations, a copy of the district’s disciplinary rules and the right of the student and parents to appear in person and be represented by an attorney or a non-attorney advocate.

If the expulsion hearing has not yet occurred, it is important that you show up and present a case for why your child should be allowed to remain in school. You have the right to copies of all the documents that will be used at the hearing and to present any evidence or witnesses that you believe help your case. Do your best to get a lawyer who can represent you and help you prepare for the hearing. If you need more time, you have the right to request a 30 day postponement.

If all of the proper procedures have been followed, you still have some choices. Expulsions can be appealed within 30 days if you feel the hearing was not fair or if there was relevant evidence that was excluded. Again, if you feel your child was expelled in violation of their rights, try contacting a legal organization such as the ACLU or Legal Services for Children.

I heard that a group of young people was unjustly targeted as gang members by police at their school in Fairfield, Calif. recently. What happened in that case?

The Fairfield case is a good example of what a handful of organized, committed parents can accomplish. In March 2007, police officers came onto the campus of Rodriguez High School at lunchtime and profiled two groups of Latino students as suspected gang members, lining them up against the wall and taking their photographs in front of the whole school. In fact, none of the students targeted were gang members. When their parents heard about it, they sprung into action and demanded an explanation from the school district and the police department. When the response they got was inadequate, they contacted the ACLU (www.aclunc.org).

Together, we worked out a settlement agreement that created new policies governing police conduct on campus, secured the destruction of all the photographs and information collected by the police, and had the police chief and school principal write a letter to the whole school making it clear that none of these students were criminal suspects or gang members.

This is a good example of what families can accomplish when they stand up for their rights. If something happens to your child at school that doesn’t seem fair, ask for an explanation and don’t give up until you get a response that makes sense.

Another thing to remember from this case is that students have Fourth Amendment rights at school—the right to be free from unreasonable searches and seizures. This means that students should not be searched or photographed or have their things taken by the police unless they have specific facts linking that student to a crime.

When are districts or schools allowed to bring in police to deal with disciplinary action? When are the police allowed to arrest a student?

Many schools have police officers on campus called Student Resource Officers (SROs), to help protect student safety. The role of the SRO, including when they get involved in student issues, is usually written down in a “memorandum of understanding” and you can request a copy from the school. It is usually not the job of police officers to enforce school rules or get involved in routine school disciplinary matters. If the police approach a student for questioning, it is wise to ask, “Am I free to go?” If the answer is no, then the student is being detained, which is only legal when the police have facts that a student has violated the law or is suspected of committing a crime. The police can only arrest a student if they have probable cause to believe that the student has committed a crime. This is the same standard that applies to the arrest of any individual, in any place, of any age.

When is a school allowed to expel a child?

The California Education Code lists the offenses for which students can be suspended or expelled. The school must provide notice to the parents in writing of which of these enumerated offenses the student has allegedly committed.

That said, there are certain serious offenses for which school principals must recommend expulsion. The first group of offenses requires immediate suspension and expulsion. They are: possessing or selling a firearm; brandishing a knife at another person, unlawfully selling drugs, sexual assault or attempted sexual assault, or possession of an explosive. The second group of offenses is serious but does not lead to automatic expulsion. These include possession of any knife or other dangerous object, unlawful possession of any drug (except for their first offense of less than one ounce of marijuana), robbery or extortion, assault or battery upon any school employee, or causing serious physical injury to another person, except in self-defense.

These cases go before the governing board, who can only expel the student if they find that he or she committed the act, that other means of correction have failed, and that, due to the nature of the act, the student poses a danger to the physical safety of others at the school. Schools can also recommend expulsion if a student has shown a pattern of behavior that has not been corrected by other means. Often this occurs once a student surpasses 20 days of suspension for a given school year, the maximum amount permitted by law.

If you or your child are being recommended for expulsion or have recently been expelled, please carefully review the due process protections that control the expulsion procedure to make sure your school district has followed all the required steps.

If parents aren't advocating for their kids, who can a student turn to for help if they are going to be suspended or expelled?

It is best if students have a trusted adult go through the disciplinary process with them to help them navigate the process. This adult can be a family member, a friend, a clergy member, or even a trusted teacher.

Unfortunately, students have no right to free legal counsel, even in the expulsion process. Students can hire a lawyer. There are also non-profit legal organizations that sometimes represent students pro bono (without charge) in expulsion hearings. The best one to call is Legal Services for Children because even if they can’t take the case directly, they can sometimes refer students to other lawyers.

If parents at a particular school think that a disproportionate group of students in one ethnic group is being targeted for expulsion, what can they do as a group?

The steps you choose to take might be determined by how many facts you already have, whether racially disproportionate discipline is something you suspect or something you already have evidence to show is true. Depending on where you are in the process, you can:

· Get organized. Build a coalition of concerned parents and share your concerns and observations with the school administration. Speak to the School Board. Demand equality and policy changes.

· Make a “Public Records Request” to the school district, asking for all disciplinary data for the district, broken down by race and offense, if they have it. Once you have made this request, they are required to provide a response within 10 days, under California law (Government Code Section 6250 et. seq). These statistics may show a pattern of discriminatory discipline. If the school district has not complied within the 10 days, write or call them reminding them of the deadline.

· If a school or school district is disciplining students of one race more harshly than students of another race, a complaint can be brought to the U.S. Department of Education, Office of Civil Rights.

· Contact a lawyer or a legal organization such as the ACLU and provide the information you have gathered to show a pattern of discriminatory discipline.

All students have the constitutional right to be treated equally. Racially biased disciplinary practices are a serious matter that can cause real harm to students’ future educational opportunities. It is important to be watchful of and responsive to schools that discipline students in a discriminatory manner.

For more information on students’ and parents’ rights, download the ACLU brochure at http://aclunc.org/youth/know_your_rights/you_have_the_right_tonot_remain_silent.shtml

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