Education is foundational to your child’s successful future. Students have significant rights guaranteeing them access to a free and appropriate public education and protecting them from unjustified school suspensions and expulsions. Parents can take steps on their own to protect their child’s student rights, but in some situations, a skilled education advocacy attorney is necessary to enforce a student’s rights effectively, particularly in the areas of student discipline and special education.
Suspension
The United States Supreme Court has affirmed student due process rights even for short school suspensions. Students have a constitutional right to receive notice of the reason for a suspension and an opportunity to present a defense. Section 48911 of the California Education Code provides detailed guidelines for notice and conference requirements in suspension proceedings. Section 48911 requires that “if a pupil is suspended from school, the parent or guardian or . . . attorney . . . shall be notified in writing of the suspension.” Schools must also meet with the student facing suspension and provide the student with an opportunity to be heard. No suspension can last beyond 5 school days, unless the student is pending expulsion proceedings. Schools must attempt to resolve problems through other means before resorting to suspension, per section 48900.5 of the Education Code.
Any suspension can cause significant disruption to your child’s learning and social and emotional well being at school. Often the conduct that resulted in suspension stems from bullying or issues the school had a duty to address to protect your child. An education attorney can advocate for your child’s rights before school discipline measures escalate.
Expulsion
Expulsion can alter the course of your child’s life. He or she may lose access to rigorous academic opportunities like advance placement (AP) courses. The out-of-district school he or she graduates from may reflect poorly on the student’s college applications. A school change may introduce your child to a negative peer group and expose your child to violence, gangs, drugs, and other unhealthy influences.
Strict due process requirements apply to schools in expulsion proceedings. Failure to comply with these rules can result in reversal of your child’s expulsion.
It is shocking how many school administrators rush to expulsion when the law requires schools to resolve issues through less extreme measures. An expulsion recommendation to the school board is mandatory only for a few behaviors, called “zero tolerance” offenses. These offenses must occur at school or at school events and include:
- Possessing or selling a genuine firearm
- Brandishing a knife at someone
- Selling drugs, including marijuana/cannabis
- Most sex offenses
- Possessing an explosive
In all other situations, the school has discretion to expel your child or not. In fact, for serious violations other than zero tolerance offenses, the school MUST show that other means of discipline are not feasible or have failed, or that the student presents an ongoing danger to the school. Even if you child has committed a “zero tolerance” offense, though, they can often avoid expulsion. While the school must recommend expulsion, your child has a right to a hearing. A skilled education attorney will engage with the school prior to the hearing and often will obtain a settlement agreement allowing your child to remain within-district. Other times, the attorney will advocate for your child at the hearing and present available defenses.
EXPULSION TIPS
- Don’t Sign. No matter what, DO NOT SIGN ANY DOCUMENTS THE SCHOOL GIVES YOU without completely understanding what the documents mean. Parents frequently agree to expulsion for their child without knowing it, when their child has a very strong defense.
- Hire a juvenile defense attorney. If your child has committed an offense that can result in expulsion, a case has likely been forwarded to the juvenile probation department and/or DA. Hiring a juvenile defense attorney immediately is critical, particularly if your child is in custody at the juvenile facility. Expulsion proceedings and juvenile delinquency proceedings can influence each other in positive and negative ways. It is critical to hire an attorney with extensive experience in both juvenile proceedings and educational advocacy if your child is facing charges and expulsion. Learn more about juvenile delinquency here.
- Look into an IEP. Requesting an IEP automatically halts expulsion proceedings and can block an expulsion if the IEP team determines that your child’s condition influenced his or her behavior underlying the expulsion offense.
- Set for a Hearing. If you refuse to waive your child’s right to an expulsion hearing, the school may offer to settle rather than proceeding with the expulsion hearing. A settlement may be an offer to keep your child within the school district, often at another campus.
IEP’s (Individualized Education Plans)
When people hear “special education,” negative stereotypes often come to mind. Many brilliant students have IEPs, however, and the services available for all students with IEPs, including those with lower IQs, typically do not resemble the outdated negative stereotypes associated with special education. An IEP can make a huge difference in your child’s ability to thrive at school, whatever their struggle may be.
Who qualifies for an IEP?
IEPs provide support for students with issues spanning from anxiety to autism. Below are the categories of conditions that entitle students to have an IEP:
- Autism
- Hearing and/or Sight Impairment
- Emotional Disability (includes anxiety, depression, mood disorders, etc.)
- Specific Learning Disabilities
- Orthopedic Impairment
- Other Health Impairment (includes ADHD, diabetes, asthma etc.)
- Speech or Language Impairment
- Intellectual Disability
- Traumatic Brain Injury
- Multiple Disabilities
How does an IEP Help my Child?
The accommodations IEPs provide range from a half-hour of counseling per week to placement in a residential school out of state. Each IEP is supposed to be individually tailored to the student’s needs. Below are some examples of IEP accommodations:
- 1-on-1 aide or para-educator during regular classes
- Smaller class sizes
- Mix of special education classes and regular classes
- Permission to leave classroom when feeling overwhelmed
- Onsite counseling
- Shorter school days
- Preferential seating in class (near front or back)
- Longer time for tests
- Modified homework assignments
This list only scratches the surface of the accommodations available through your child’s IEP. Some schools take pride in their special education program and offer great support to students. Other schools do not and will do everything in their power to block your child from obtaining the services they need to access an appropriate and free education. An attorney may be necessary if your child’s school is failing to provide an IEP that allows your child to access his or her education.
What is the process to get an IEP?
Submit a Request
It is very easy to request an IEP. You simply ask the school to evaluate your child for an IEP “in all areas,” and the school has 15 days to prepare an assessment plan for your review. The best way to submit the request is via email to your child’s principal and secretary or others in administration. This leaves no question as to when you sent your request and to whom.
Complete the Assessment
Once you consent to the assessment plan, the school has 60 days to complete your child’s IEP evaluation and report. You can view the strict timelines for IEP assessments here. A school psychologist and other professionals will then evaluate your child through interviews, tests, and activities.
Review the Report
After the school completes the evaluation, you will receive the report finding your child does or does not qualify for an IEP. If the report recommends an IEP, it will include an offer of “FAPE” – free and appropriate public education. These are the services and accommodations the school will provide to ensure your child receives an appropriate education despite his or her struggles. You will review the report at a meeting with the school. At this meeting, the parents and student can request changes be made to the IEP, such as those listed above under “How does an IEP help my child?”
Accept or Reject the Assessment Results
The school is going to ask you to agree to the results of their assessment at your child’s initial IEP meeting. This means accepting their decision that your child does not need an IEP or accepting their opinion of why your child needs an IEP and their proposed accommodations. You do not need to sign at the meeting. It is best to talk to an attorney about the results and get suggestions, or take the report to your child’s doctor or therapist to get their opinion before you sign.
If the school denies an IEP for your child, you have the right to demand an independent assessment at the school’s expense. If this assessment is unwarranted, however, the school can file a case to get an order requiring you to pay for the assessment.
Should we Get an IEP or a 504 Plan?
It depends on what your child needs. An IEP offers more robust accommodations. Your child gets team meetings, a individualized plan with multiple services, and protections in school discipline proceedings. A 504 plan provides simpler accommodations but is available to a broader category of students. Another big advantage of a 504 plan is that it continues beyond high school, allowing for accommodations in college and beyond. IEP’s end after high school. You can discuss the pros and cons of an IEP versus a 504 plan with an educational rights attorney.
Schools can bulldoze you and your child without an attorney. If you are unsure whether or not you need an attorney or if you have other questions, give us a call for a free consultation.
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