With school expulsions, it can sometimes seem hopeless. The school may be able to prove a student “did it,” and isn’t that it? Not necessarily. Schools have at least one more hurdle to jump over to expel a student in most cases (excluding the big 5 mandatory expulsion offenses). Schools also must prove that other types of student correction have been attempted or repeatedly failed and/or the student’s actions makes the student physically dangerous.
If a school cannot prove one of those, a student cannot be expelled.
Student expulsions can be fought by parents if legal rules are known
Expulsion for Certain Offenses Have Additional PrerequisitesSpecifically, California Education Code sections 48915 (b) and (e), require (for non-mandatory expulsion offenses) the following:
[A] decision to expel a pupil for any of those acts shall be based on a finding of one or both of the following:
(1) Other means of correction are not feasible or have repeatedly failed to bring about proper conduct.
(2) Due to the nature of the act, the presence of the pupil causes a continuing danger to the physical safety of the pupil or others.
What does this mean? This means that the school not only has to prove the student did the expellable act, but also that “other means of correction” to school expulsion would not work, or have been tried and failed.
If the school cannot prove this, the school must show that the expellable act itself is so heinous that if the student accused returned to school, the student would present a “continuing danger” to the “physical safety” of the student or others.
Schools can expel students but only if legal mandates are met
What are “Other Means of Correction?”
Other means of correction could be something like the following:
1) Behavior contract
2) Counseling
3) Education
4) Service at school or in the community
5) Suspension itself
6) A sit-down lecture/talk
…or practically anything within legal bounds to address the alleged student offense.
If a school says correction has already been tried by the school but repeatedly failed, that can be attacked at the student expulsion hearing. For example, if a student is in trouble for theft- did he have prior corrective actions related to theft or not? Were the prior school corrective actions adequate?
Can the School Prove Dangerousness?
With the physically dangerous question, the student’s act must be analyzed. Does the action truly make the student physically dangerous to others were the student to return to school?
If the student were in a fight, stole something, bullied, sexually harassed, etc. do the student’s actions truly show they would be a physical threat were they to return to school?
If the student is accused of something more minor, such as receiving stolen items, smoking, swearing habitually, or other act which shows no future physical threat, a parent can argue the student will not present a continuing danger were the student to return to school and can defeat an expulsion recommendation.
Minor offenses make it easier to show lack of dangerousness
What if the School Does Not Prove Other Means or Dangerousness?
I frequently see these requirements ignored by schools with no proof of anything at an expulsion hearing on “other means” or dangerousness. There may merely be a summary statement in the school documents.
However, these are legal requirements. If one of these cannot be proven regarding the student, even if the underlying expulsion offense can be, the student cannot be expelled (in the non-mandatory expulsion categories).
Arguments on these matters should be made at the hearing, and may need to be made on appeal to the county board of education. Often these questions are glossed over and really not proven at a school expulsion hearing. This failure of proof opens a door for parents to use this to the student’s advantage and to try to reverse the expulsion.
Just one more weapon for parents to use in the student expulsion war.
Student lawyer Michelle Ball helps elementary, middle, secondary school and college students address expulsions, suspensions and other discipline. As a lawyer based in Sacramento, Michelle Ball can assist students throughout California, in places such as Long Beach, Chico, Irvine, Santa Barbara, Goleta, Davis, San Francisco, Los Angeles, Folsom and many other areas.
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