It’s the Law: School Discipline
by Gary Redenbacher
May 02, 2013 | 2198 views | 0 0 comments | 14 14 recommendations | email to a friend | print

School discipline has been in the news recently.

In Saratoga, three boys are accused of sexual assault that led to a young girl committing suicide. The community is wondering why they weren’t expelled from school.

(The school says that the offense was not on school grounds or related to a school activity. That is questionable, as reports suggest this behavior later disrupted school activities, which is a punishable offense.)

Here in Scotts Valley, someone threatened to shoot up the high school. If it was a student, he or she will certainly face discipline.

I’ve handled a number of discipline cases over the years, one involving a middle school child who was suspended and then expelled for playing cops and robbers at the school after hours. He and his chums brought cap guns to school and ran around “blasting” one another.

Imitation firearms at a school is a no-no.

Still, the boy was a straight-A student and hadn’t had so much as a tardy before the cap gun incident. His transgression was obviously not nearly as severe as the two incidents mentioned above, yet the school had no trouble meting out its most extreme punishment. He was the unlucky recipient of the school’s zero-tolerance policy.

School discipline is a unique animal, but first, a quick explanation — suspension is a short-term removal from school, usually one to five days (some schools have on-site suspensions). Expulsion is getting kicked out of a school for a lengthy period of time, usually a semester to a year.

It surprises many to know, however, that once expelled, you still have to attend school. You’re simply moved to another school — often one designed for those who have trouble in traditional public schools.

Another fact of our school discipline system that surprises many is that the discipline code’s default provision, except for the most severe offenses, is to not expel.

The Education Code lists a host of behaviors for which a student can be suspended and, possibly, expelled.

For the vast majority of those, however, the school board may not expel unless its members find that other means of correction are not feasible or have repeatedly failed to bring about proper conduct, or that due to the nature of the act, the presence of the pupil causes a continuing danger to the physical safety of the pupil or others. 

There are a few acts for which the principal must recommend expulsion and the governing board must expel.

These include brandishing a knife, sexual assault, possessing a gun or explosives and selling drugs. These acts, and a few related ones, are true zero-tolerance offenses.

For all other behaviors, the school is supposed to review the circumstances and exercise its discretion. That didn’t happen with my middle school boy. No discretion was exercised. The boy was summarily expelled.

I explained to my student and his parents that what the school board did was illegal. The law required that the principal exercise some discretion rather than automatically recommend the boy for expulsion. Further, the law required the board make one of the two findings above before expelling. The boy immediately recognized the irony of his situation: a bunch of adults, who were breaking the law were expelling him for breaking the law.

We appealed to the County Board of Education, which overturned the expulsion.

Nevertheless, there were still one or two members who voted to uphold the expulsion, despite the admitted lack of findings by the local board.

The principal of the school was rather upset the expulsion was overturned. I reiterated that the law provided zero-tolerance for serious offenses, but the principal and the school board were required to exercise discretion regarding lesser offenses.

He would have none of it. When I suggested that his offense of ignoring his duties under the law was far more egregious than my client’s I thought he would burst a blood vessel.

Eventually, a zero-tolerance policy was challenged in a case called T.H. v. San Diego Unified School District. The court ruled it was perfectly fine if the school board adopted a policy that bypassed the law that requires a principal to exercise his or her discretion (as long as other due process protections remained). So, the principal in my case is no longer breaking the law.

I’m sure he is very relieved.

- Gary Redenbacher of Scotts Valley is an attorney in private practice. Email him at

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