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State Law Sets Rules for Expulsion From School; Hearing Is Specified

September 22, 1997

Q: My child is facing expulsion from school. Is there anything I can do about it?


A: With "zero-tolerance" policies in effect at many school districts, this subject often arises. The first thing you should know is that schools can't expel your child for just any reason. State law lays out what offenses bring automatic expulsion, and the other offenses for which a district can level the penalty, which generally lasts at least one semester, according to the state Education Code.

A school must recommend students for expulsion if they have been found with a firearm, brandished a knife at someone, unlawfully sold a controlled substance or committed or attempted to commit a sexual assault or sexual battery. For other offenses, such as robbery, possessing a knife or assaulting another student, the discretion lies with the principal or superintendent as to whether expulsion would be appropriate.

In any case, you and your child are entitled to an expulsion hearing before school administrators that functions much like a court hearing, with evidence presented and witnesses called. This hearing must take place within 30 days of the time a principal or superintendent determines that a student violated the Education Code, unless the parent asks for a postponement.

You may review the district's evidence beforehand and present your own, supporting your child's version of the incident, with help from an attorney if you wish.

The panel of administrators, usually three, then makes a recommendation to the school board, which has the power to eject a student.

You may appeal the decision, which must be rendered within 10 school days after the hearing, to the county Board of Education.

But unless the county board grants a new hearing, no further evidence is considered, said Georgiann Boyd, coordinator of student services for the county Department of Education. Instead, the board reviews the transcripts of the district hearing and the evidence presented, then renders its decision based on whether the district exceeded its jurisdiction; conducted an unfair hearing; abused its discretion, or overlooked relevant evidence.

Any further appeal goes to Superior Court, where an administrative law judge weighs the evidence and makes a ruling.

Cases rarely get to that level, said Ronald D. Wenkart, general counsel for the Orange County Department of Education.

In fact, he said, expulsion appeals are not very common. Last school year, the department recorded 600 expulsions countywide, most of them in the middle- and high-school grades. Just five were appealed to the county.

School districts, he said, "usually won't bring an expulsion unless there is pretty solid evidence. Usually, a principal won't recommend it unless it is a serious offense."

The cost of taking a case to court can run several thousand dollars, said Veronica Norris of Tustin, one of the few local attorneys who handle expulsion cases.

With an expulsion case, among the first concerns she raises are whether the child has an undiagnosed disability or psychological problem that would classify him or her as a special education student. Such a situation forces an evaluation of the youngster and may open the door to a settlement with the district that avoids expulsion.

"I would say 85% to 90% of the expulsions I handle involve children with underlying disability or emotional situations," said Norris, who has represented dozens of children in the past few years.

For serious offenses, she checks to see if law enforcement agencies have been involved. The absence of a law enforcement report for a serious offense raises a red flag that the district's evidence may not be as strong as officials contend.

If your child ultimately is expelled, the district by law must provide alternative education under a state statute that went into effect in July 1996, Wenkart said. That usually means enrollment in a continuation school such as the county-run Horizons Program for troubled teens.

Sometimes, Norris said, a district will stay the expulsion and simply place the offending student in another school.

Within one year, a school board must consider readmitting your child. However, the expulsion stays on school records and must be forwarded to any other school in which your child seeks to enroll. (It is not included in transcripts for colleges.) That district then decides whether to admit the student, according to the code.

If you move while your child is under expulsion, the new district does not have to enroll him or her in a regular school and may refer the student to an alternative education program. But if the expulsion term has been served, the district must consider admitting the student to a regular school. Most districts do just that, Boyd said.

Private schools are not bound by the Education Code's mandates, Boyd said.

Would you like some expert advice about how to help your child have success with learning? Write to the Counseling Center c/o The Times Orange County, 1375 Sunflower Ave., Costa Mesa 92626, or fax us at (714) 966-7711.

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