Last Updated on March 17, 2021 by Michelle Ball
By Michelle Ball, California Education Attorney for Students since 1995
Parents every day face suspensions of their children for a myriad of reasons, some legitimate and some not so legitimate. One section I see infrequently used by schools is California Education Code §48900.3, which allows suspension or expulsion for “hate violence.” This could be good or bad depending on who you represent.
Specifically this section states:
…[A] pupil in any of grades 4 to 12, inclusive, 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 caused, attempted to cause, threatened to cause, or participated in an act of, hate violence… [Ed §48900.3]
The Education Code looks to the criminal code (Penal Code) in California to define this term “hate violence” (see Ed Codes §§48900.3 and 233 and Penal Codes §§422.55 422.6, 422.7, 422.75). This makes it a bit hard for the average individual to track, and perhaps even school employees to discern, what ‘hate violence” IS.
First, although the word “violence” is included in the Education Code, when one reviews the relevant Penal Codes, it is clear that no actual violence needs to happen for a suspendable or expellable offense to occur. Unfortunately, only an “attempt” or “threat” of hate violence could be enough.
Basically, a student may be guilty of “hate violence” if that child interferes with another person’s constitutional rights (not a small concept here for a student or school employee to fathom- law libraries are filled with large dusty law books defining “constitutional rights”) because of their “actual or perceived characteristics” including:
(4) Race or ethnicity.
(6) Sexual orientation.
(7) Association with a person or group with one or more of these actual or perceived characteristics. [Penal Code §422.55]
I rarely, if ever, see this section used, at least not as the main charging allegation, but it would apply perhaps when a student is targeted with malicious acts due to being a disabled student (something I DO frequently see) or due to their ethnicity or other protected characteristic(s). It could also apply if a student’s Free Speech rights were cut because the student was not heterosexual, or if a student were cut off from a group (Freedom of Association) due to their race.
This section applies starting in the fourth grade, similar to sexual harassment offenses, so your third grader should not see this section on any suspension form.
As far as allowing a student to be punished for an “attempted” or “threatened” hate violence, this is a tad unusual, as the majority of sections in the Education Code allowing suspension or expulsion do not allow “attempts” to commit an act to be a basis for discipline. This means if someone throws a water balloon and attempts to hit someone due to their religion or race but misses, they could conceivably be punished.
Now, I wonder how much education really goes on in schools about “hate violence” and breach of “constitutional rights.” I thought United States History was not until senior year of high school and if so, students will need to be better informed of things that could be “hate violence.” Probably they get just a single brief assembly in the beginning of the year which everyone promptly forgets. Just another in the long list of punishments our kids could be subject to in the wacky school universe!
Education Attorney for Students
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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.