Last Updated on March 17, 2021 by Michelle Ball
By Michelle Ball, California Education Attorney for Students since 1995
Schools and students are in turmoil in California, with all pushed to distance education for fear of the “invisible enemy” aka Coronavirus. But what about the upcoming fall and the 2020-21 schoolyear? How will students return to school in the Coronavirus “new normal” and how will school restrictions be enforced? Imagine kids prior normal actions at school (running, hanging out, talking, high-fiving, texting, laughing, playing sports together, walking through crowded hallways) and now imagine those actions 6 feet apart. How will schools stop kids from interacting and how will they be punished if they do not socially distance? I am not looking forward to finding out.
It is hard to imagine kids playing on a playground and social distancing, isn’t it? Let’s take a 5, 10 or even a 16 year old and try to keep them 6 feet away from their friends. How will this work? What about in physical education (PE)? Will they just jog alone or play tennis? There are innumerable questions and serious concerns on how this will be managed. It is not hard to envision a heavy type of authoritarianism will exist in schools to enforce the new standards. In this new “normal” what will schools do to stop kids who run within 6 feet of someone or who shake someone’s hand? Will they be suspended, or even expelled for placing someone in theorized danger? I hope not, but I am not sure.
California students will have to navigate severe restrictions and face a new class of offenses that at this time can only be imagined, such as:
– Being within 6 feet of another.
– Not sanitizing properly
– Threatening others with touching, spitting or breathing on them
– Lying that they have Coronavirus to intimidate and scare others
– Threatening to bring Coronavirus to school
– Touching a friend, teacher or staff member (e.g. high-fiving, hugging, poking, bumping into someone)
– Touching things around campus
– Not sanitizing their desk or seat, etc. when they change classes
– Playing in groups
– Playing contact sports
– Using someone else’s stuff
– Going to the bathroom when someone else is using it
– Sitting in the wrong seat, spot or being in a place not marked with a taped “X”
– Not wearing a mask (if required)
– Whispering to each other
– Coughing or sneezing and not covering up the cough/sneeze
– Coming to school with a fever or sick
– Not reporting when a family member is sick
– Posting on social media related to Coronavirus in a way that threatens students or creates a school disruption
There are no direct provisions in the California Education Code for suspension or expulsion for failure to social distance, or for students not waiting their turn, YET, but there are provisions in the Education Code for suspension or expulsion for other things that I fear may be used against kids.
Education Code §48900: This code section allows suspension or expulsion for many things, including threatening someone, disruption/defiance, and bullying:
A pupil shall not be suspended from school or recommended for expulsion, unless the superintendent of the school district or the principal of the school in which the pupil is enrolled determines that the pupil has committed an act as defined pursuant to any of subdivisions (a) to (r), inclusive:(a)(1) Caused, attempted to cause, or threatened to cause physical injury to another person…
(k) Disrupted school activities or otherwise willfully defied the valid authority of supervisors, teachers, administrators, school officials, or other school personnel engaged in the performance of their duties. [expulsion and suspension may be limited depending on grade level]…
(r) Engaged in an act of bullying. For purposes of this subdivision, the following terms have the following meanings:
(1) “Bullying” means any severe or pervasive physical or verbal act or conduct, including communications made in writing or by means of an electronic act, and including one or more acts committed by a pupil or group of pupils as defined in Section 48900.2, 48900.3, or 48900.4, directed toward one or more pupils that has or can be reasonably predicted to have the effect of one or more of the following:
(A) Placing a reasonable pupil or pupils in fear of harm to that pupil’s or those pupils’ person or property.
(B) Causing a reasonable pupil to experience a substantially detrimental effect on the pupil’s physical or mental health.
(C) Causing a reasonable pupil to experience substantial interference with the pupil’s academic performance.(D) Causing a reasonable pupil to experience substantial interference with the pupil’s ability to participate in or benefit from the services, activities, or privileges provided by a school.
So, if a student threatens another student with coming close to a friend and “getting” them, will this mean they are threatening them with harm? What if a student purposefully intimidates a student who is very fearful of Coronavirus? Will this be bullying? If a student refuses to stand apart from friends trying to play, will they be sent to the office? What if they want to run around separately, but accidentally run into each other- will they be expelled for endangering someone? Is this even far-fetched in the current climate of California? Not necessarily. This is just one more minefield they will have to navigate.
Another code section which could conceivably be twisted into a tool to punish during the Coronavirus panic is Education Code §48900.4, which states:
…a pupil enrolled 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 intentionally engaged in harassment, threats, or intimidation, directed against school district personnel or pupils, that is sufficiently severe or pervasive to have the actual and reasonably expected effect of materially disrupting classwork, creating substantial disorder, and invading the rights of either school personnel or pupils by creating an intimidating or hostile educational environment.
The student who threatens another daily with touching them, with being next to them on the bus, with breathing on them, could conceivably have this code thrown at them to punish.
What about Education §48900.7? This section allows suspension or expulsion for making threats of grave harm which can be immediately carried out:
(a) … a pupil 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 made terroristic threats against school officials or school property, or both.
(b) For the purposes of this section, “terroristic threat” shall include any statement, whether written or oral, by a person who willfully threatens to commit a crime which will result in death, great bodily injury to another person, or property damage in excess of one thousand dollars ($1,000), with the specific intent that the statement is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate family’s safety, or for the protection of school district property, or the personal property of the person threatened or his or her immediate family
One can only imagine a student saying he spit on his hands and rubbed all the doors and handles, or who did not wash his hands (or gloves if required) before he came to class, or who tells many people he has Coronavirus and will purposefully make the school sick (despite not having it), being accused of terroristic threats.
As I frequently see kids unfairly suspended and expelled, this is just one more concern I have when kids return to school under California’s strict Coronavirus control measures. Ultimately, it will be up to the reasoned application of discipline rules to students by school administrators and the strong advocacy of parents. Let’s hope schools use their discretion to discipline wisely in the “new normal.” We shall see.
Education Attorney for Students
LAW OFFICE OF MICHELLE BALL
717 K Street, Suite 228
Sacramento, CA 95814
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.