By Michelle Ball, California Education Attorney for Students since 1995
If a student receives a school suspension, fighting it may seem tough. However, if legally the student’s suspension should never have happened, winning arguments may be easier for parents to make. Many first offenses must have ALTERNATIVE punishments to suspension issued.
Knowing the law regarding suspensions is important in case a parent ever receives the dreaded “your child is being suspended…” phone call.
Many Student Discipline Offenses Are NOT Suspendable, If They Are Student’s First Offense
In 2013, the California legislature amended Education Code §48900.5, clearly specifying when a student cannot be suspended for a first discipline offense. This section applies to elementary, junior high, and high school suspensions.
The legislature also explained that “other means of correction” should be attempted in many cases instead of school suspension.
Yet, to this day, this code remains ignored and improperly applied. This means thousands of students across California are being illegally suspended in breach of §48900.5. Most parents often don’t even know their kids are being illegally suspended!
Section 48900.5 Lists Prohibits Some Suspensions for First Offenses
(a) Suspension…shall be imposed only when other means of correction fail to bring about proper conduct… a pupil, including an individual with exceptional needs… may be suspended... upon afirst offense, if …the pupil violated subdivision (a), (b), (c), (d), or (e) of Section 48900 or that the pupil’s presence causes a danger to persons.
Wrongs For Which a Student May Be Suspended for First Offense
Education Code sections (a)-(e) of §48900 lists the following offenses (which per the above may bring about suspension for a first time offense):
(a) (1) Caused, attempted to cause, or threatened to cause physical injury…
(2) Willfully used force or violence upon the person of another, except in self-defense.
(b) Possessed, sold, or otherwise furnished a firearm, knife, explosive, or other dangerous object…
(c) Unlawfully possessed, used, sold, or otherwise furnished, or been under the influence of, a controlled substance,… an alcoholic beverage, or an intoxicant...
(d) Unlawfully offered, arranged, or negotiated to sell a controlled substance,… an alcoholic beverage, or an intoxicant of any kind, and eithersold, 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.
(e) Committed or attempted to commit robbery or extortion.
These are more violent and dangerous school offenses and a student may receive a suspension for first time offenses in these categories or for another offense if their presence on a school campus presents a danger.
Alternatives Should Apply For All Other First Offenses
If a student is has not committed one of the above offenses and their school rule breach is not “dangerous,” they should NOT be suspended (at home or in school) on their first offense. Rather, they should receive an alternative to school suspension.
Examples of alternatives could be to complete a task at school, receive a detention, receive counseling, etc. There is a long list in §48900.5(b).
School Officials Remain Unaware They Should Not Suspend for Many First Offenses
What I have found is either the school officials are unaware of the requirement that alternatives to suspension must be applied prior to suspension, or they don’t care. It seems that many vice principals just keep imposing suspensions for non-violent offenses.
Once Imposed, Wrongful Suspension Must Be Fought
If a student suspension which should not have been imposed IS issued by an elementary, junior high or high school, parents need to fight the suspension promptly.
To get an illegal school suspension out of a student’s records, strong arguments based on California legal codes need to be made to the school or district.
Unfortunately, parents may be faced with a blank stare or school staff who don’t believe what parents say. Luckily, a parent can print out and carry §48900.5 with them as proof.
If properly challenged, with clear anti-suspension arguments, school officials may remove and expunge a wrongful suspension from the student’s records.
Parents should fight wrongful student suspensions
Parents Should Assert The Students Right Upon Initial Notification of Suspension If Possible
It would be much easier and fairer if schools would just not suspend for first offenses as described in §48900.5, so if possible, parents should avoid any fight by simply asserting the student’s right to suspension alternatives when first meeting with the school or disusing the suspension over the phone.
Schools May Change Their Wrongful Practices If They Are Confronted With the Law
The only way schools will change is if they are challenged.
If elementary, junior high and high school suspensions are properly attacked by parents, schools may just start following the law and stop kicking students out of school for minor offenses.
The legislature meant what it said when it mandated alternatives to suspensions. Schools need to follow this clear mandate regarding first offenses. Make sure that they do.
Please see my disclaimer. This is legal information, not legal advice and no attorney-client relationship is formed by this posting. This blog may not be reproduced without permission from the author and proper attribution of authorship. This blog may not reflect the current state of the law.