By Tom Chorneau, SI&A Cabinet Report – News & Resources http://bit.ly/16IQSBc
Thursday, August 1, 2013 :: Classroom security could be diminished as a result of a recent court ruling that found charter schools are under no obligation to notify neighboring school districts of a student’s dismissal – even if the separation was the result of dangerous or threatening behavior.
Under long-standing statutes, the parent or legal guardian of a child expelled from a traditional school district must notify a potential receiving school district of the circumstances and thus give administrators the opportunity to consider alternatives to simply placing the new student into the receiving school’s mainstream population.
But the Fourth District Court of Appeal made clear in a June ruling that charter schools have the right to dismiss a student without holding an evidentiary hearing or make written findings.
In Scott B. v. Board of Trustees of Orange County High School of the Arts, a three-judge panel ruled charter schools, as a school of choice, are not bound by the state’s Education Code that defines and regulates the expulsion process.
Thus, for the first time, the courts have made a distinction between “expulsion” and “dismissal” when it comes to charter operations.
But observers note that the ruling could also create security problems for traditional school districts who may be the unknowing receiver of a student with a troubling past.
“There is the possibility school districts will see a number of students being dismissed or "counseled out" of charter schools and returning to public schools,” said attorneys Edward Sklar and Sarah Garcia of the Lozano Smith law firm.
“Specifically, students who have been dismissed, not expelled, as a result of dangerous behavior, may seek to re-enroll in their public school district,” the attorneys said in a recent news brief. “School dDistricts will have to work to balance the rights of those students with its mandate to ensure school safety.”
The case revolves a 14-year-old student at the Santa Ana charter school, who had been diagnosed as disabled with attention deficit/hyperactivity disorders. He had ongoing disciplinary problems with the teachers and school staff and under the charter’s conduct rules he had accumulated 52 demerits – more than twice needed for dismissal.
On one final occasion, however, Scott threatened another student with a knife and later warned a school official that when he turned 21 he would “get a gun and shoot you.”
The school’s board of trustees decided to suspend Scott for five days and report his conduct to the Santa Ana Police Department. The administration also held a manifestation hearing to evaluate whether his conduct was the result of his disability – finding that it was not related. Following that hearing, the school board decided to dismiss him from the program.
His parents challenged the dismissal in court arguing that the school’s charter does not provide for disciplinary dismissal based on the possession of a knife at school and that the knife did not qualify as a weapon under the state’s Education Code. The trial court denied the petition.
In appealing the ruling, the family also argued that Scott was entitled to an evidential hearing from of the school’s board of trustees before he could be expelled. But the higher court agreed with the prior ruling – Scott was dismissed, not expelled.
The distinction, attorneys said, is important – not just because the court is making clear that charter schools are not bound by the same laws that traditional school districts must follow when it comes to dealing with expulsions.
“There is a difference between being expelled and being dismissed,” the appeal’s court panel said. “A student who has been expelled must generally serve the term of expulsion before being admitted to another school. An expulsion results in a delay of the student’s legitimate interest in an education.”
The court noted that because Scott’s enrollment in the charter school was by choice – not compulsion – his dismissal would not cause a delay in his education.
“Dismissal from a charter school does not implicate these concerns to the same degree as expulsion,” the court panel said. “Unlike public schools generally, (the Orange County High School of the Arts) is a school of choice. No student is required to attend. When a student is dismissed from OCHSA, the student is free to immediately enroll in another school without the loss of classroom time. Thus, dismissal from OCHSA need not and should not delay Scott’s education.”
It is the immediate re-enrollment that has caused pause for officials at traditional schools.
When a student gets expelled from traditional school district, there is a required notice of serious infractions between exiting and receiving school districts:
Ed. Code 48915.2: A pupil expelled from school for any of the offenses listed in subdivision (a) or (c) of Section 48915, shall not be permitted to enroll in any other school or school district during the period of expulsion unless it is a county community school pursuant to subdivision (c) of Section 1981, or a juvenile court school, as described in Section 48645.1, or a community day school pursuant to Article 3 (commencing with Section 48660) of Chapter 4 of Part 27 , subd. (a)).
One remedy might be new state law that compels charters or parents of former charter students to make the appropriate disclosure. But officials also note that districts serving as the authorizing agency for new charters can consider revising their charter agreement – or memorandum of understanding – to include language that supports disclosure.
Charter School’s Student ‘Dismissal’ Wasn’t ‘Expulsion,’ Appellate Court Concludes
F3 NewsFlash prepared by Melanie Petersen and John Norlin | Fagen Friedman & Fulfrost | http://bit.ly/13pOdxT
A student who brandished a knife at his charter school lost his bid to overturn the Board of Trustees dismissal decision. (Scott B. v. Board of Trustees of Orange County High School of the Arts (6/14/13, No. G047177)). Because the dismissal was not tantamount to an expulsion and the student could immediately enroll in another school, he was not entitled to an evidentiary hearing, and the Board did not abuse its discretion by not detailing its findings in its dismissal letter. Additionally, even if the student had been “expelled,” the court noted that Education Code section 48918, which requires that a hearing be held prior to an expulsion, does not apply to charter schools.
In this case, a student at the Orange County High School of the Arts (“OCHSA”), an authorized charter school, exhibited a knife and threatened a fellow student resulting in his suspension. Subsequently, when school staff determined that the act of bringing the knife to school was not a manifestation of the student’s ADHD, the assistant principal sent a letter to the student’s mother informing her of the decision to dismiss the student from the school. The OCHSA Board of Trustees unanimously affirmed the dismissal. In a one-sentence letter informing the student of its determination, the Board stated that it had voted 5-0 to support the administrative decision of dismissal.
The student challenged the Board’s decision in court, contending he was entitled to an evidentiary hearing before he was “expelled,” that the Board abused its discretion by not making findings to support its decision, and that the instrument in question was not a “knife” within the meaning of the Education Code because its blade did not exceed three and one-half inches. After the Superior Court of Orange County upheld the dismissal, the student appealed.
The Court of Appeal rejected the student’s claim that the Education Code entitled him to an evidentiary hearing in front of the Board before he could be expelled, stating that the student was wrong “for at least two reasons.”
First, the court noted that Education Code section 48918, which requires that a hearing be held prior to a student’s expulsion, does not apply to charter schools. Section 47610 of the Education Code exempts charter schools "from the laws governing school districts," with the exception of certain provisions related specifically to charter school operations, funding, teachers’ retirement, and laws establishing minimum age for public school attendance. Further, although OCHSA's charter states that criteria for suspension and expulsion shall be consistent with six specifically referenced Education Code sections, Education Code section 48918 was not one of the listed statutes, and OCHSA has never adopted that section as a part of its charter.
Second, the court pointed to the difference between “expelled” and being “dismissed.” It noted that a student who has been expelled must generally serve the term of expulsion before being admitted to another school and, therefore, an expulsion results in a delay of the student's legitimate interest in obtaining an education. Further, the court stated that the parent of a student who has been expelled for possessing a knife must notify the new school of the expulsion. “Notification affects the student's reputation . . . and may affect his future relationships with his teachers at the new school as well,” the court said.
Conversely, the court observed that “dismissal” from a charter school does not implicate those concerns to the same degree as expulsion. It said that “Unlike public schools generally, OCHSA is a school of choice. No student is required to attend.” When a student is dismissed from OCHSA, the student is free to immediately enroll in another school without the loss of classroom time. Thus, the court stated, dismissal from OCHSA need not and should not delay the student’s education. In fact, the letter informing the student’s mother of his dismissal instructed her to immediately enroll her son in another school.
Because the student was not entitled to an evidentiary hearing on his appeal from his dismissal, the Board was not required to set forth its findings in its decision affirming the dismissal.
A charter student who is “dismissed” generally will be free to enroll in another school immediately; and therefore, certain procedural protections provided by law for expulsions will not be applicable. Although there is no concept of disciplinary “dismissal” for regular K-12 students, school districts as charter authorizers should be aware of this case as part of implementing their oversight responsibilities.
If you have any questions regarding this matter, please call one of our six offices.
Melanie is a partner in the F3 San Diego office.
John is Special Counsel in the F3 San Diego office.
This F3 NewsFlash is a summary only and not legal advice. We recommend that you consult with legal counsel to determine how this legal development may apply to your specific facts and circumstances.