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What are my sons legal rights in defending a suspension from school (high school)?

Niwot, CO |

My son (a senior) had a confrontation with his ex-girlfriend and her girlfriend. It elevated to the point where the girls got physical and hit, slapped, scratched and pummeled him, and he has the scratches, bumps and bruises to show for it. He never struck back (he is 6'3"). The sidekick girlfriend laid into him pretty good but he kept himself in check and did not physically retaliate. In the end they all got suspended for 5 days. The administrator that called me said that she believed my son did the right thing but it was just school policy that everyone "involved" gets suspended. This is a terrible message to send anyone, especially kids: even though you do the right thing you will get punished for it the same as the perpetrators, just because. How do I fight this with the school?
Thanks

Attorney Answers 3


  1. Best answer

    I am not at all surprised at the school's disciplinary decision. It is, in my judgment, highly typical and predictable. Most middle and high schools have adopted a policy and rule that everyone involved in physical altercations gets disciplined.

    There are a couple of reasons for this: first, the school can never determine (to the satisfaction of any of the participants) what was the provocation that caused the incident of physical force. But, in most circumstances, the physical stuff follows something significant that was said or done, and the physical aggression cannot generally be looked at in a vacuum for fault-finding purposes. Second, in almost all circumstances, all of the participants, including those who did not initiate the escalation to physical force, could have avoided it by walking away. The school sees value in encouraging and affirmatively teaching that important lesson. Third, particularly when there are gender, size, age, and physical skill or power disparities, it may be impossible for the school to separate out and define any participants' claims of self-defense and pre-emptive self-defense from acts of aggression. For these reasons, many schools simply bow to the fact that they cannot after the fact reach defensible individual findings of fault or responsibility and so the word goes out to the students: if there is fighting, everyone takes a hit. Your son very likely has full knowledge that this is the school's policy and practice.

    Of course, you can fight this administrative action by the school. The school and/or the school district has a procedure for appealing and contesting both the application of the rule and the degree of the penalty assessed. The school will on request provide you with a copy of the procedures to be invoked. Make an immediate request -- time limits for challenges can be very short.

    In some instances an attorney can be important in causing the school to understand that the family is very serious about not accepting an unjust finding and administrative action. But, of course, a legal challenge to the school's action can be expensive. Depending on how damaging you assess this matter may be to your son's future plans, you may want to simply try and negotiate with school officials for a confidential sealing of the disciplinary record, to be effective at the close of the current school year if there have been no further conduct problems.

    My responses to questions on Avvo are never intended as legal advice and must not be relied upon as legal advice. I give legal advice only in the course of an attorney-client relationship. Exchange of information through Avvo's Questions forum does not establish an attorney-client relationship with me. That relationship is established only by individual consultation and execution of a written agreement for legal services.


  2. It definitely sounds like your son was subjected to criminal acts of third degree assault and/or harassment by the girls at school. The scratches, bumps, and bruises are sufficient for bodily injury under Colorado law. I am surprised that the girls did not get criminally charged. I also do not understand why your son would have been suspended as well. If he did nothing wrong and the administrator acknowledges that, it is irrelevant what their general school policy is concerning these types of situations. You can talk with a local attorney in your area, the local PTA organization, the school district's legal counsel, and the Colorado Department of Education here in Denver.


  3. Attorneys Mccall and Leroi, did a great job of eplaining the rationale behind so called "zero tollerance" policies (which can, when abusively applied, result in inequitable outcomes), as well as some concrete things you can do to challenge this decision. I won't repeat those here.

    I write to additionally suggest you research the school district website and review the student policy handbook as well as other district policies and procedures (which are likely published there). Students are only entitled to the barest of procedural due process protections when it comes to school discipline. It will will be helpful to understand exactly how the disctrict frames these issues.

    Good luck

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