John, a Latino high school student, was a sophomore with an excellent grade point average and no history of discipline problems. He was on track to graduate on time and attend college. Besides his academic success, John was an athlete and he enjoyed extracurricular activities. He had numerous friends and was well liked. For John to encounter any trouble at school was completely unexpected. However, in the first semester of his junior year, he faced an expulsion hearing for threatening to cause physical injury, engaging in threats or intimidation, and committing terroristic threats against an African American female student and for engaging in vulgarity and sexual harassment due to pictures and comments about another female student he kept on his cell phone. The evidence against him was incontrovertible. His parents, knowing that they did not want their son expelled and sent to an alternative educational placement, sought help from California Rural Legal Assistance.
John was a candidate for president of a school academic club; a classmate and friend, Tanya, an African American female, decided to run against John for the position. Her decision angered John, who felt that a friend should not compete against him. That evening at home John posted on Facebook that if Tanya ever tried to talk to him again, he would “punch her in her monkey face.” Another classmate asked to whom he referred and John wrote that he meant Tanya. Also appearing on Facebook was a picture he had taken in biology class the previous school year; the picture depicted a black pencil hanging from a noose on a faucet while three white pencils appeared to “look at” the black pencil as it hung from the faucet. In the picture’s background were several Caucasian classmates and Tanya.
Tanya was upset by the Facebook postings and promptly reported them to school officials. John was called into the office, and his cell phone was confiscated; on it school officials found the picture of the pencils in biology class as well as two pictures of a sexual nature that depicted a different female student, Samantha. John had taken one of the pictures; John’s friend, the other. In a text message John sent back to his friend, John pretended to masturbate to the picture taken by the friend.
John was truthful with school administrators who investigated the incidents. He received an immediate five-day suspension; during the five days the suspension was extended pending an expulsion hearing. At that point John and his family sought legal assistance; they feared the incident would foreclose the family’s dream of John attending college.
From a strictly legal standpoint John’s case was far from strong. The evidence against him was compelling and seemed strong enough to warrant expulsion. However, John’s case is exactly the kind in which a student most needs legal representation. Expulsion from high school and assignment to an alternative educational placement could easily undermine his drive to excel academically and go to college. John repeatedly articulated his desire to transfer to another school that offered the courses that met college admission requirements and from there attend college. He also understood the strength of the allegations and evidence against him. However, John’s records showed good grades, no prior discipline history, and active participation in athletic and other school activities. I hoped these facts would be his saving grace and help convince the school district to consider alternatives to expulsion under California law, which allows the district the discretion to forgo the expulsion and allow him to transfer to another mainstream high school (Cal. Educ. Code § 48917 (West 2012)).
California Rural Legal Assistance agreed to represent John and advocate his transfer to another regular school. To show the district that John was trying to change his behavior, I suggested counseling, which John’s parents were already seeking. Our office offered additional referrals to affordable community resources.
On John’s behalf I approached the district prior to the formal expulsion hearing; I highlighted the many positives in John’s school career and requested an alternative to expulsion that would allow him to remain in a regular school. Initially the district resisted this approach and wanted to proceed to an expulsion hearing. In a stroke of fortuitous timing, students’ standardized test scores were released; John earned a perfect score. This fact, combined with his excellent academic record and lack of prior discipline problems, caused the district to reconsider. The parties agreed that John would stipulate to expulsion but would transfer to a different comprehensive high school in the district rather than an alternative educational placement. John would finish his high school career in a traditional school, take the college preparatory classes of his choice, and engage in the same activities as in his previous school.
This outcome was remarkable. Often, without effective advocacy, in cases that involve serious violations of the education code, the administrative panel rules for expulsion and the required school board review amounts to a mere rubber-stamp approval. Districts routinely fail to exercise their discretion to impose alternative discipline, suspend an expulsion, or expel and allow a transfer to a different traditional school. Often students are transferred to an alternative school where they may fall through the cracks even and never reenroll in regular school. This was not the case for John. By negotiating a resolution of the problem prior to the hearing, I developed an effective response to what were serious behavior issues and put John back on track. In the meeting at which the stipulation was signed participants discussed some of the history of African Americans in this country, and the family gained increased understanding about why the racist acts were extremely hurtful to the African American student.
After the stipulation was reached and signed, the family was extremely thankful. They apologized for the racist actions, including, in particular, to me, John’s African American attorney. Weeks later, accompanied by his mother, John surprised me at my office with flowers and a hug. These actions were particularly telling of a change that had occurred in John. He continues to do well in school and is now a junior. This case exemplifies how, even in the face of difficult facts, basic advocacy can result in positive outcomes.