Cerritos • Fresno • Irvine • Pasadena • Pleasanton • Riverside • Sacramento • San Diego

Dealing With Challenging ParentsIssues Related To Safe School Environment

Prepared by: Bryan G. Martin, Senior Counsel

San Joaquin Section’s Winter Workshop

December 12, 2014

SAFE SCHOOLSCalifornia Constitution

Article 1, section 28(c): “Right to Safe Schools. All

students and staff of public primary, elementary,

junior high and senior high schools have an

inalienable right to attend campuses which are

safe, secure and peaceful.”

SAFE SCHOOLS

• School Safety Plans: Education Code sections 32280-32289

• School Safety Violence Protection Act: Education Code sections 35294.10-35294.15

• Safe and Drug Free Schools: U.S. Code, Title 20, sections 7101-7165

• Title IX, No Child Left Behind: “Persistently dangerous” schools

SAFE SCHOOLS

• Positive School Climate“…all research…finds a positive

correlation between better school climate and increased student learning and achievement.” (Jones et al., 2008)

– Learning Conditions– Environment– Safety

DISRUPTION• Sources of Disruption: students, parents,

“third” parties• What Types of Behavior Constitute

Actionable Disruption?– Judgment Call– Words as well as actions– You “know it when you see it”– Case-by-Case Analysis

• General Statutory Guidance– Education Code section 44810: willful interference with

discipline, good order, lawful conduct, or a class or activity, with the intent to disrupt, obstruct, or to inflict damage to property or person.

DISRUPTION

– Education Code section 44811: conduct that materially disrupts classwork or extracurricular activities or involves substantial disorder.

– Penal Code sections 626-626.11:o Willful entry on school property by an excluded

person

o Disruption of the orderly operations of campus or school facility

o Interference with the “peaceful” conduct of school activities

DISRUPTION• A number of statutes address the exclusion of

disruptive persons from school district property, each of which depends upon the existence of a specific set of conditions.

• Because these statutes all have their own unique requirements, the following list of questions is for the school site administrator to use in obtaining the information necessary to decide which statute applies when barring a disruptive person from the District’s campuses.

1. Who is being disruptive [e.g., a student, parent, employee, member of public]?

2. Is the disruptive person a suspended/expelled student or a suspended/dismissed employee of the District who was served with prior notices to “stay away”?

DISRUPTION

3. Does the person in question have a history of disruptive conduct and if so, for how long?

4. What has the disruptive person done?

5. Has the Principal confirmed the accuracy of his/her own report describing the nature of the disruptive conduct, or the report of the vice/assistant principal/learning director, within 24 hours?

• Once the site administrator has the above information and if the facts support excluding the disruptive person from District property, the site administrator should prepare a letter to notify the disruptive person of his/her exclusion, the length of that exclusion and his/her right to demand a hearing, if applicable.

DISRUPTION

• Education Code and Penal Code provide specific mechanisms for addressing disruption– Education Code sections 32210-32212, 44810, 44811– Penal Code sections 415.5, 626-626.11

• Penal Code sections 626-626.11 are all similar in purpose, but differ considerably in terms of application, timelines and procedures. Accordingly, the District must be careful to determine the status of the person who threatens or causes a disruption and identify the particular provision(s) that may apply to specific factual situation.

DISRUPTION• Definitions Relevant to Temporary

Removal of Disruptive Persons– Penal Code section 626: Definitions:

• "’School’ means any public or private elementary school, junior high school, four-year high school, senior high school, adult school or any branch thereof, opportunity school, continuation high school…, or any public right-of-way situated immediately adjacent to school property or any other place if a teacher and one or more pupils are required to be at that place in connection with assigned school activities.”

• "‘Chief administrative officer’ [“CAO”] means…[f]or a school, the principal of the school, a…person who…is designated by the principal, or…who carries out the same functions as…a…principal.”

DISRUPTION• Exclusion of Suspended, Dismissed or Expelled Students

or Employees– Penal Code section 626.2:

• Prohibits suspended, expelled or dismissed students or employees from entering school district property. This section applies to any student or employee:– Who has been suspended, expelled or dismissed by the District after a

hearing, and – Who has been served with prior written notice via certified mail of an order to

stay away from school premises for the period of suspension or dismissal/expulsion [not to exceed one year].

– Pursuant to Penal Code section 626.2, once the “stay away” notice has been served on the student or employee by certified mail, any willful entry upon school property by the excluded person without written permission of the principal is a misdemeanor, punishable by a fine of up to $500.00 or imprisonment in the county jail for up to six months.

DISRUPTION

• Exclusion from Campus Where There is Reasonable Cause to Believe a Person Has Previously Disrupted Orderly Campus Operations: – Penal Code section 626.4:

• Authorizes the principal to withdraw consent for a person to remain on campus where reasonable cause exists to believe the person has disrupted the orderly operations of a campus or school facility. Section 626.4 limits the period in which consent may be withdrawn to a total of 14 days.

DISRUPTION

• Whenever consent is withdrawn to prevent a disruptive person from being on school property, the principal, principal’s designee or other authorized school officer must prepare a written report as soon as reasonably possible which includes:

1. Description of the person whose presence on campus will no longer be permitted; including name, address and telephone number, if available; and

2. A statement of the facts leading to the withdrawal of consent and showing cause to believe that the person did indeed willfully disrupt orderly campus or facility operations.

DISRUPTION• Within 24 hours after consent is withdrawn, the above report

must be reviewed by the principal to confirm that reasonable cause existed to believe that orderly operations were disrupted. In other words, regardless of whether the principal or his designee prepares the report, the principal must nonetheless review that report within 24 hours to confirm the findings contained therein or the withdrawal of consent to be on campus is null and void.

• As soon as the principal confirms the above report, the school site administrator should issue a letter notifying the affected person that he/she has been banned from the school campus for a period of 14 days. This letter must contain the facts as set forth in the report detailing the circumstances that gave rise to the stay away order. In addition, the letter must notify the person that during the 14 day period of exclusion, he/she may submit a written request for hearing to the principal.

DISRUPTION

• Upon receipt of a hearing request, the principal must immediately serve a written notice of hearing to be held no later than seven days thereafter. Section 626.4 does not identify who is responsible for conducting the appeal hearing, but the superintendent should be designated for this purpose since the principal was involved in preparing or confirming the report on the consent withdrawal.

• Please note that if at any time during the 14 day period, the principal has reason to believe the person’s presence will no longer constitute a substantial and material threat to orderly operations; the principal must restore the person’s access to district facilities and grounds. But, absent any change in the situation, the stay away order automatically terminates fourteen (14) days after consent to be on district property was initially withdrawn.

DISRUPTION

• Exclusion Of Persons Who Enter Onto School Campus Or Facility, Outside Of Common Areas Where Public Business Is Conducted, To Commit Acts Likely To Interfere With Peaceful Activities At School:– Penal Code section 626.7:

• Pursuant to Penal Code section 626.7, a principal or designee may direct a person to leave a school campus or facility if it appears to the principal/designee that the person has committed or is likely to commit an act interfering with the peaceful conduct of school activities. The principal/designee must not only direct the person to leave the premises, but must also warn the person that returning to the campus or facility without following duly posted requirements to contact the school’s administrative office, constitutes a crime.

DISRUPTION

• While Penal Code section 626.7 is much less cumbersome to implement than Section 626.4 above, Section 626.7 is not applicable to the District’s students, officers, or employees, or to any other persons whose employment requires them to be present at the school or facility [e.g., delivery personnel, repairmen, union representatives, etc.]

• You can facilitate any future need to rely on Penal Code section 626.7 to order disruptive persons (such as parents) to stay off District property, by posting notices [assuming you have not already done so] outside each campus and facility stating the following:

NOTICE: PERMISSION TO ENTER IS REQUIRED. All visitors must report to the school office before entering school premises. Persons failing to comply will be directed to leave. Any person who re-enters this campus without first reporting to the school office is guilty of a misdemeanor, punishable by fine and/or incarceration in the county jail. Violators will be prosecuted as per California Penal Code section 626.7.

DISRUPTION

• Exclusion of Persons Who Enter Any School Building, School Premises, Grounds or Any Adjacent Sidewalks, Streets or Public Ways Without Lawful Business:– Penal Code section 626.8:

• Provides the District with authority to direct persons to leave school property and adjacent public areas if the person’s presence is disruptive and he/she has no lawful business with the school or District. In issuing this directive, the principal/designee is required to warn the individual that he/she will be committing a crime if:– The person does not immediately heed the directive and quit the

premises;– The person reenters the campus or facility within seven (7) days;

or– The person has established a continued pattern of unauthorized

entry into or upon such premises meaning that on at least two prior occasions during the current school year the person disrupted or interfered with school activities.

DISRUPTIONIt is worth noting that terms “lawful business” as used in

Penal Code section 626.8 means any activity not

prohibited by law. Thus, Section 626.8’s usefulness is

diminished considering it requires the person to be

excluded from District property to be both disruptive

and engaged in conduct that is prohibited by law.

Civility Policy

•Effective to further define disruptive conduct and to provide notice of the

ramifications of such conduct.

•For example, a Code of Civility should include disruptions created by

communications such as letters, phone calls, and emails.

Civility Letter

•Effective to place, for example, an offending parent on notice that his/her

conduct is unacceptable and could result in exclusion from school property

and/or criminal liability.

DISRUPTION

DIVORCED PARENTS/CUSTODY ISSUES

• Divorce and Custody Orders:– Divorce Decree– Divorce Settlement Agreement– Other temporary or permanent court orders

Note: Orders are not binding on a school, school district, or personnel unless specifically stated in the order.

Joint Custody

•“Joint Custody” means joint physical custody and joint legal custody. (Family Code

section 3002)

Joint Legal Custody

•“Joint Legal Custody” means that both parents shall share the right and the

responsibility to make the decisions relating to the health, education, and welfare of a

child. (Family Code section 3003)

Joint Physical Custody

•“Joint Physical Custody” means that each of the parents shall have significant

periods of physical custody. (Family Code section 3004)

CHILD CUSTODY

Sole Legal Custody

•“Sole Legal Custody” means that one parent shall have the right and the

responsibility to make the decisions relating to health, education, and welfare of a

child. (Family Code section 3006)

Sole Physical Custody

•“Sole Physical Custody” means that a child shall reside with and be under the

supervision of one parent, subject to the power of the court to order visitation. (Family

Code section 3007)

CHILD CUSTODY

•In making an order of “Joint Legal Custody,” the court shall specify the circumstances under which the consent of both

parents is required to be obtained in order to exercise the legal control of the child and the consequences of the failure to

obtain mutual consent. In all other circumstances, either parent acting alone may exercise legal control of the child. An

order of “Joint Legal Custody” shall not be construed to permit an action that is inconsistent with the physical custody order

unless the action is expressly authorized by the court..

Family Code section 3083

CUSTODY

•In making an order of “Joint Physical Custody,” the court shall

specify the rights of each parent to physical control of the child

in sufficient detail to enable a parent deprived of that control to

implement laws for relief of child snatching and kidnapping.

Family Code section 3084

•In making an order with respect to both parents, the court

may award “Joint Legal Custody” without awarding “Joint

Physical Custody.”

Family Code section 3085

CUSTODY

CUSTODY

• Bottom Line – If a student’s parents have legally separated or dissolved their marriage, the parents’ rights to access the student at school is governed by the then-existing custody order or agreement.

EDUCATIONAL RIGHTS

• By law, parents have an absolute right to access any and all pupil records related to their children maintained by a school district. (Education Code section 49069)

• Where divorced parents have “Joint Legal Custody” of a student, each parent has the right and responsibility to make decisions related to the child’s education. (Family Code section 3033)

• This includes the right to access, inspect, copy and challenge information contained in the pupil’s record maintained by the school district. (Cites)

EDUCATIONAL RIGHTS

• Education Code section 51101 further establishes the right of parents to be informed by a school concerning their student and participate in their child’s education, including the right to access student records. (Education Code section 51101(a).)

• Education Code section 51101(c), however, prohibits a school district from releasing information to a parent or permitting participation by a parent in their child’s education, “if it conflicts with a valid restraining order, protective order, or order for custody or visitation issued by a court of competent jurisdiction.” (Education Code section 51101(d).)

•

EDUCATIONAL RIGHTS

• Bottom Line – One parent may not prohibit the other parent from accessing the child’s records or participating in the child’s education, unless a court order specifically states otherwise.

EDUCATIONAL RIGHTS

• Note – Under Education Code section 49062(c), a school counselor shall not disclose confidential information to the parents of the pupil when the counselor has reasonable cause to believe that the disclosure would result in a clear and present danger to the health, safety, or welfare of the pupil.

EDUCATIONAL RIGHTS

• Note – a “non-custodial” parent; i.e., a parent who has no right to any level of custody over a child, nevertheless has a right to access the records of his/her pupil, unless a valid court order limits such access.

Question

AnswerSession

For questions or comments, please contact:

Thank You

Bryan G. Martin

bmartin@aalrr.com

(559) 225-6700