BILL NUMBER: SB 744 AMENDED
BILL TEXT
AMENDED IN SENATE MAY 28, 2013
AMENDED IN SENATE MAY 14, 2013
AMENDED IN SENATE MAY 8, 2013
AMENDED IN SENATE APRIL 24, 2013
AMENDED IN SENATE APRIL 10, 2013
INTRODUCED BY Senator Lara
FEBRUARY 22, 2013
An act to amend Sections 1981, 1983, 48660.1, 48662, and 48918 of,
to add Sections 1981.5 and 48662.5 to, and to repeal Section 1981.2
of, the Education Code, relating to pupils.
LEGISLATIVE COUNSEL'S DIGEST
SB 744, as amended, Lara. Pupils: involuntary transfer: county
community schools and community day schools.
(1) Existing law authorizes a county board of education to
establish and maintain one or more community schools into which the
county board of education may enroll specified pupils, including, but
not limited to, pupils who are expelled for specified reasons,
referred as the result of the recommendation by a school attendance
review board, probation referred, or homeless children.
This bill would revise the list of pupils who may be involuntarily
enrolled in a county community school to limit the kind of probation
referrals and remove homeless children. The bill would require the
consent of the pupil's parent or guardian for the enrollment of a
pupil who is referred as the result of a recommendation by a school
attendance review board. The bill would allow enrollment of certain
other pupils in a county community school with the consent of the
pupil's parent or guardian. The bill would authorize, with respect to
certain probation referrals to a county community school, certain
persons, including the attorney for a pupil who is under the
jurisdiction of a delinquency court, to take specified actions
related to the enrollment of a pupil in a county community school.
(2) Existing law requires a county community school to prescribe
an individually planned educational program based on an educational
assessment for each pupil. Existing law requires the course of study
of a county community school to be adopted by the county board of
education to enable each pupil to continue academic work leading to
the completion of a regular high school program.
This bill would require an individually planned
educational program to include specified services to be provided
either at the school or through community organizations
county boards of education operating county community schools to
ensure, among other things, that appropriate services and programs
specified in a pupil's individualized education program are provided
.
(3) Existing law authorizes the governing board of a school
district to establish one or more community day schools for pupils in
any of kindergarten and grades 1 to 12, inclusive. Existing law
authorizes the governing board of a school district to assign a pupil
to a community day school only if the pupil meets specified
conditions, including, but not limited to, being expelled, being
referred by a school attendance review board or other district-level
referral process, and being probation referred pursuant to specified
law.
This bill would revise the list of pupils who may be involuntarily
transferred to a community day school to limit the kind of probation
referrals. The bill would impose certain conditions on the
involuntary transfer of a pupil referred by the school attendance
review board or other district-level referral process if there is no
school attendance review board. The bill would allow enrollment of
certain other pupils in a community day school with the consent of
the pupil's parent or guardian. The bill would authorize, with
respect to certain probation referrals to a community day school,
certain persons, including the attorney for a pupil who is under the
jurisdiction of a delinquency court, to take specified actions
related to the enrollment of a pupil in a community day school.
(4) Existing law states the intent of the Legislature that
community day schools include specified program components,
including, but not limited to, individualized instruction and
assessment.
This bill would state the intent of the Legislature that, if an
individualized assessment shows that the pupil requires additional
educational services that are not available at the community day
school, the parent, guardian, or responsible adult of the pupil
should be notified, and that the probation officer relative to a
pupil ordered placed in a community day school by court order should
also be notified. The bill would require school districts operating
community day schools to ensure that appropriate services and
programs, as provided, are provided to certain pupils, as specified.
(5) This bill would provide a pupil who is involuntarily enrolled
in a county community school or a community day school the right to
reenroll in his or her former school or another comprehensive school
immediately after being readmitted from expulsion or court-ordered
placement. The bill would prohibit the pupil from being denied
readmission to the school district of residence based on his or her
failure to comply with any additionally imposed criteria beyond the
terms of the initial or subsequent expulsion order. The bill would
prohibit additional academic or behavioral criteria or conditions
that would extend the duration of the placement of a pupil in a
county community school or a community day school beyond the terms of
the initial or subsequent expulsion order from being added.
(6) Existing law requires the governing board of each school
district to establish rules and regulations governing procedures for
the expulsion of pupils. Existing law requires the adopted rules and
regulations to require, if a hearing officer or administrative panel
decided not to recommend expulsion, the expulsion proceedings to be
terminated and the pupil to be immediately reinstated and permitted
to return to a classroom instructional program, any other
instructional program, a rehabilitation program, or any combination
of these programs.
This bill would require the adopted rules and regulations to
instead require that the pupil be permitted to return only to the
classroom instructional program from which the expulsion referral was
made unless a parent, guardian, or responsible adult requests
another school placement in writing. The bill would, before the
placement decision is made by the parent, guardian, or responsible
adult, require the superintendent of schools or the superintendent's
designee to consult with the parent, guardian, or responsible adult
regarding any other school placement options for the pupil in
addition to the option to return to his or her classroom
instructional program from which the expulsion referral was made. By
requiring the governing board of a school district to establish or
revise the rules and regulations governing procedures for the
expulsion of pupils, the bill would impose a state-mandated local
program.
(7) The California Constitution requires the state to reimburse
local agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that, if the Commission on State Mandates
determines that the bill contains costs mandated by the state,
reimbursement for those costs shall be made pursuant to these
statutory provisions.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 1981 of the Education Code is amended to read:
1981. The county board of education may enroll in a county
community school pupils who are any of the following:
(a) Expelled from a school district for any reason other than
those specified in subdivision (a) or (c) of Section 48915.
(b) Recommended to attend by a school attendance review board with
the written consent of the parent or guardian. No pupil shall be
required to attend a county community school based on the
recommendation of the school attendance review board. That attendance
is voluntary and consent may be rescinded.
(c) (1) (A) On probation, with or without the supervision of a
probation officer and consistent with an order of a juvenile court,
who are considered to be wards of the court under Sections 601 and
602 of the Welfare and Institutions Code and ordered placed pursuant
to Sections 725, 729.2, and 791 of, and paragraph (2) of subdivision
(a) of Section 727 of, the Welfare and Institutions Code.
(B) Under the supervision of a probation officer, with the consent
of the minor and the minor's parent or guardian, pursuant to Section
654 of the Welfare and Institutions Code.
(C) Under the supervision of a probation officer pursuant to
Section 726 and paragraph (3) of subdivision (a) of Section 727 of
the Welfare and Institutions Code with the consent of the pupil's
parent, guardian, or responsible adult appointed by the juvenile
court to make educational decisions for the pupil. The enrollment of
a minor covered by this paragraph in a county community school shall
be consistent with paragraph (2) of subdivision (c) of Section 726 of
the Welfare and Institutions Code, which provides that all
educational and school placement decisions shall seek to ensure that
the youth is in the least restrictive educational program, has access
to the academic resources, services, and extracurricular and
enrichment activities that are available to all pupils, and are based
on the best interests of the minor.
(D) Unless specifically ordered by a juvenile court, nothing in
this subdivision shall be construed to conflict with the existing
rights of a parent, guardian, or responsible adult appointed by the
juvenile court pursuant to Section 726 of the Welfare and
Institutions Code to make educational placement decisions for the
minor.
(E) With respect to a pupil's enrollment in a county community
school pursuant to subparagraph (B) or (C), and consistent with
paragraph (2) of subdivision (c) of Section 726 of the Welfare and
Institutions Code and California Rule of Court 5.651, all of the
following shall apply:
(i) The attorney for, or the person holding the educational rights
of, a pupil who is under the jurisdiction of the delinquency court
may use the procedures set forth in California Rule of Court 5.651 to
address any change of placement that results in the enrollment of
the pupil in a county community school that is not his or her school
of origin.
(ii) The attorney or the person holding the educational rights
appointed by the court for a pupil who is under the jurisdiction of
the delinquency court may, during a regularly scheduled hearing,
raise any concerns with respect to whether the enrollment of the
pupil in a county community school is meeting the educational needs
of the pupil.
(iii) Nothing in this subparagraph is intended to limit in any way
the rights or responsibilities of any person as set forth in
paragraph (2) of subdivision (c) of Section 726 of the Welfare and
Institutions Code and California Rule of Court 5.651.
(2) On probation or parole and not in attendance at any school,
where enrollment is with the consent of the parent, guardian, or
responsible adult, or the pupil, if he or she is 18 years of age or
older. Nothing in this subdivision shall impact the provision of
services or funding for youth up to 25 years of age pursuant to
subdivision (b) of Section 1982.
(3) Expelled for any of the reasons specified in subdivision (a)
or (c) of Section 48915.
(4) Enrollment in a county community school pursuant to this
subdivision shall be consistent with Section 48645.5.
(d) Pupils whose school districts of attendance, or, for pupils
who do not have school districts of attendance, school districts of
residence, have, at the request of the pupil's parent, guardian, or
responsible adult, approved the pupil's enrollment in a county
community school, subject to the following:
(1) A pupil shall not be enrolled in a county community school
pursuant to this subdivision unless the school district determines
that the placement will promote the educational interests of the
pupil.
(2) A parent, guardian, or responsible adult of a pupil enrolled
in a county community school pursuant to this subdivision may rescind
the request to the placement, and the pupil shall be immediately
reenrolled in the school that the pupil attended at the time of the
referral, or, with the consent of the parent, guardian, or
responsible adult, another appropriate school.
(e) The procedures outlined in subdivisions (b) to (e), inclusive,
of Section 51225.2 govern the transfer of credits, records,
including special education records, and grades required pursuant to
subdivision (a) of Section 48645.5 and Section 49068 when the pupil
transfers to and from the county community school.
SEC. 2. Section 1981.2 of the Education Code is repealed.
SEC. 3. Section 1981.5 is added to the Education Code, to read:
1981.5. (a) A pupil who is involuntarily enrolled in a county
community school pursuant to subdivision (a) of, or subparagraph (A)
of paragraph (1) or paragraph (3) of subdivision (c) of, Section 1981
shall have the right to reenroll in his or her former school or
another comprehensive school immediately after being readmitted from
the expulsion order pursuant to Section 48916 or court-ordered
placement. Nothing in this section is intended to limit the school
placement options that a school district may recommend for a pupil
being readmitted.
(b) A pupil shall not be denied readmission to the school district
of residence based on the pupil's failure to comply with any
additionally imposed criteria beyond the terms of the initial order
or any subsequent order to expel issued pursuant to Section 48916.
(c) Additional academic or behavioral criteria or conditions shall
not be added that would extend the duration of the placement of a
pupil in a county community school beyond the terms of the initial
order or any subsequent order to expel issued pursuant to Section
48916.
SEC. 4. Section 1983 of the Education Code is amended to read:
1983. (a) Pupils enrolled in county community schools shall be
assigned to classes or programs deemed most appropriate for
reinforcing or reestablishing educational development.
(b) These classes or programs may include, but need not be limited
to, basic educational skill development, on-the-job training, school
credit recovery assistance, tutorial assistance, and individual
guidance activities.
(c) To the extent that independent study is determined to satisfy
the individually planned educational program described in subdivision
(d) for a pupil attending a county community school, it shall meet
all the requirements of Section 51745 and following, including the
requirement that entry into that program is voluntary.
(d) An individually planned educational program based upon an
educational assessment shall be prescribed for each pupil.
If the educational assessment or rehabilitation plan shows that the
pupil needs any of the following, the pupil shall be enrolled in or
have access to these programs either at the school or through
community organizations: counseling, mental health counseling, or
other support services, access to services necessary to transition a
pupil back to his or her prior school or to another comprehensive
school, mediation, conflict resolution, alternative behavior
interventions as described in subdivision (b) of Section 48900.5,
supplemental services to assist with passage of the high school exit
examination, or extracurricular or other enrichment activities. For
pupils who are under an expulsion order, nothing in this section is
intended to require participation in the school district's
extracurricular or other similar programs.
(e) The course of study of a county community school shall be
adopted by the county board of education and shall enable each pupil
to continue academic work leading to the completion of a regular high
school program.
(f) County boards of education operating county community schools
shall ensure that assessments in all areas of suspected disability
and appropriate services and programs specified in a pupil's
individualized education program are provided in compliance with all
applicable laws.
(g) County boards of education operating county community schools
shall ensure that appropriate services and programs designed to
address the language needs of pupils identified as English learners
are provided in compliance with all applicable laws.
SEC. 5. Section 48660.1 of the Education Code is amended to read:
48660.1. (a) It is the intent of the Legislature that school
districts operating community day schools, to the extent possible,
include the following program components:
(1) School district cooperation with the county office of
education, law enforcement, probation, and human services agencies
personnel who work with at-risk youth.
(2) Low pupil-teacher ratio.
(3) Individualized instruction and assessment. If an
individualized assessment shows that the pupil requires additional
educational services, supports, such as mental health counseling, or
classes, such as college preparatory classes, that are not available
at the community day school, the parent, guardian, or responsible
adult of the pupil should be notified. If the pupil has been placed
pursuant to a court order as described in paragraph (2) of
subdivision (a) of Section 48662, the probation officer should also
be notified.
(4) Maximum collaboration with school district support service
resources, including, but not limited to, school counselors and
psychologists, academic counselors, and pupil discipline personnel.
(5) A course of study that enables each pupil to continue academic
work leading to the completion of a regular high school program.
(b) For an expelled pupil, if the plan of rehabilitation required
pursuant to subdivisions (b) and (c) of Section 48916 requires access
to a particular service or program for the pupil to meet its
conditions, that service or program shall be made available to the
pupil free of cost or the rehabilitation plan shall be amended by the
governing board of the school district that ordered the expulsion to
remove the condition and reflect that the service or program is not
available to the pupil.
(c) School districts operating community day schools shall ensure
that assessments in all areas of suspected disability and appropriate
services and programs specified in a pupil's individualized
education program are provided in compliance with all applicable
laws.
(d) School districts operating community day schools shall ensure
that appropriate services and programs designed to address the
language needs of pupils identified as English learners are provided
in compliance with all applicable laws.
SEC. 6. Section 48662 of the Education Code is amended to read:
48662. (a) A pupil may be involuntarily transferred to a
community day school by a school district only if he or she meets one
or more of the following conditions:
(1) The pupil is expelled for any reason.
(2) The pupil is on probation with or without the supervision of a
probation officer and consistent with an order of a juvenile court,
and is considered to be a ward of the court under Sections 601 and
602 of the Welfare and Institutions Code and is ordered placed
pursuant to Sections 725, 729.2, and 791 of, and paragraph (2) of
subdivision (a) of Section 727 of, the Welfare and Institutions Code.
(3) The pupil is referred by the school attendance review board,
or other district-level referral process if there is no school
attendance review board, with the approval of and a determination by
the school district that the proposed placement will meet the
educational needs of the pupil, including any needs related to the
referral to the school attendance review board in the first instance,
and that the proposed placement is accessible by the pupil without
incurring any transportation costs above and beyond the costs to
attend his or her school of residence. The term for an involuntary
transfer under this paragraph shall be no longer than the end of the
semester following the semester during which the acts leading to the
referral occurred, regardless of whether the pupil is successful at
the placement, at which time the parent, guardian, or responsible
adult may choose whether to continue the pupil's enrollment at the
community day school or to return the pupil to the prior school or
another appropriate school. If the parent, guardian, or responsible
adult has concerns at any time about the appropriateness of the
proposed placement, he or she may raise those concerns with the
school attendance review board or the school district, and those
concerns shall be taken into consideration with regard to whether the
placement shall continue.
(b) A pupil may be voluntarily transferred to a community day
school only if he or she meets one of the following conditions:
(1) Under the supervision of a probation officer, with the consent
of the minor and the minor's parent or guardian, pursuant to Section
654 of the Welfare and Institutions Code.
(2) Under the supervision of a probation officer pursuant to
Section 726 of, and paragraph (3) of subdivision (a) of Section 727
of, the Welfare and Institutions Code with the consent of the pupil's
parent, guardian, or responsible adult appointed by the juvenile
court to make educational decisions for the pupil. The enrollment of
a minor covered by this paragraph in a community day school shall be
consistent with paragraph (2) of subdivision (c) of Section 726 of
the Welfare and Institutions Code and subdivision (h) of Section
48853, which provide that all educational and school placement
decisions shall seek to ensure that the minor is in the least
restrictive educational program, has access to the academic
resources, services, and extracurricular and enrichment activities
that are available to all pupils, and that the decisions are based on
the best interests of the minor.
(3) The parent or guardian of the pupil has approved or requested
the pupil's placement in a community day school.
(4) A pupil who is recommended to attend a community day school by
a school district shall not be enrolled in a community day school
pursuant to paragraph (3) unless the school district has made a
finding that the placement will promote the educational interests of
the pupil.
(5) The parent, guardian, or responsible adult of a pupil enrolled
in a community day school pursuant to paragraph (3) may rescind the
request to the placement, and the pupil shall be immediately
reenrolled in the school the pupil attended at the time of the
referral, or, with the consent of the parent, guardian, or
responsible adult, in another appropriate school.
(c) The procedures outlined in subdivisions (b) to (e), inclusive,
of Section 51225.2 govern the transfer of credits, records,
including special education records, and grades required pursuant to
subdivision (a) of Section 48645.5 and Section 49068 when the pupil
transfers to and from the community day school.
(d) First priority for assignment to a community day school shall
be given to a pupil expelled pursuant to subdivision (d) of Section
48915, second priority shall be given to pupils expelled for any
other reasons, and third priority shall be given for placement to all
other pupils pursuant to this section, unless there is an agreement
that the county superintendent of schools shall serve any of these
pupils.
(e) Unless specifically ordered by a juvenile court, nothing in
this section shall be construed to conflict with the existing rights
of a parent or guardian or responsible adult appointed by the
juvenile court pursuant to Section 726 of the Welfare and
Institutions Code to make educational placement decisions for the
minor.
(f) Enrollment in a community day school pursuant to this section
shall be consistent with Section 48645.5.
(g) With respect to a voluntary transfer under paragraph (1) or
(2) of subdivision (b), and consistent with paragraph (2) of
subdivision (c) of Section 726 of the Welfare and Institutions Code
and California Rule of Court 5.651, all of the following shall apply:
(1) The attorney for, or the person holding the educational rights
of, a pupil who is under the jurisdiction of the delinquency court
may use the procedures set forth in California Rule of Court 5.651 to
address any change of placement that results in the enrollment of
the pupil in a community day school that is not his or her school of
origin.
(2) The attorney or the person holding the educational rights
appointed by the court for a pupil who is under the jurisdiction of
the delinquency court may, during a regularly scheduled hearing,
raise any concerns with respect to whether the enrollment of the
pupil in a community day school is meeting the educational needs of
the pupil.
(3) Nothing in this subdivision is intended to limit in any way
the rights or responsibilities of any person as set forth in
paragraph (2) of subdivision (c) of Section 726 of the Welfare and
Institutions Code and California Rule of Court 5.651.
SEC. 7. Section 48662.5 is added to the Education Code, to read:
48662.5. (a) A pupil who is involuntarily enrolled in a community
day school shall have the right to reenroll in his or her former
school or another comprehensive school immediately after being
readmitted from the expulsion order pursuant to Section 48916 or
court-ordered placement. Nothing in this section is intended to limit
the school placement options that a school district may recommend
for a pupil being readmitted.
(b) A pupil shall not be denied readmission to the school district
of residence based on the pupil's failure to comply with any
additional criteria imposed beyond the terms of an initial or
subsequent order to expel issued pursuant to Section 48916.
(c) Additional academic or behavioral criteria or conditions shall
not be added that would extend the duration of the placement of a
pupil in a community day school beyond the terms of an initial or
subsequent order to expel issued pursuant to Section 48916.
(d) Any school created for the purpose of enrolling pupils that
may be assigned to a community day school pursuant to Section 48662
shall follow the same procedures for the involuntary transfer of
pupils to a community day school set forth in this article.
SEC. 8. Section 48918 of the Education Code is amended to read:
48918. The governing board of each school district shall
establish rules and regulations governing procedures for the
expulsion of pupils. These procedures shall include, but are not
necessarily limited to, all of the following:
(a) (1) The pupil shall be entitled to a hearing to determine
whether the pupil should be expelled. An expulsion hearing shall be
held within 30 schooldays after the date the principal or the
superintendent of schools determines that the pupil has committed any
of the acts enumerated in Section 48900, unless the pupil requests,
in writing, that the hearing be postponed. The adopted rules and
regulations shall specify that the pupil is entitled to at least one
postponement of an expulsion hearing, for a period of not more than
30 calendar days. Any additional postponement may be granted at the
discretion of the governing board of the school district.
(2) Within 10 schooldays after the conclusion of the hearing, the
governing board of the school district shall decide whether to expel
the pupil, unless the pupil requests in writing that the decision be
postponed. If the hearing is held by a hearing officer or an
administrative panel, or if the governing board of the school
district does not meet on a weekly basis, the governing board of the
school district shall decide whether to expel the pupil within 40
schooldays after the date of the pupil's removal from his or her
school of attendance for the incident for which the recommendation
for expulsion is made by the principal or the superintendent, unless
the pupil requests in writing that the decision be postponed.
(3) If compliance by the governing board of the school district
with the time requirements for the conducting of an expulsion hearing
under this subdivision is impracticable during the regular school
year, the superintendent of schools or the superintendent's designee
may, for good cause, extend the time period for the holding of the
expulsion hearing for an additional five schooldays. If compliance by
the governing board of the school district with the time
requirements for the conducting of an expulsion hearing under this
subdivision is impractical due to a summer recess of governing board
meetings of more than two weeks, the days during the recess period
shall not be counted as schooldays in meeting the time requirements.
The days not counted as schooldays in meeting the time requirements
for an expulsion hearing because of a summer recess of governing
board meetings shall not exceed 20 schooldays, as defined in
subdivision (c) of Section 48925, and unless the pupil requests in
writing that the expulsion hearing be postponed, the hearing shall be
held not later than 20 calendar days before the first day of school
for the school year. Reasons for the extension of the time for the
hearing shall be included as a part of the record at the time the
expulsion hearing is conducted. Upon the commencement of the hearing,
all matters shall be pursued and conducted with reasonable diligence
and shall be concluded without any unnecessary delay.
(b) Written notice of the hearing shall be forwarded to the pupil
at least 10 calendar days before the date of the hearing. The notice
shall include all of the following:
(1) The date and place of the hearing.
(2) A statement of the specific facts and charges upon which the
proposed expulsion is based.
(3) A copy of the disciplinary rules of the school district that
relate to the alleged violation.
(4) A notice of the parent, guardian, or pupil's obligation
pursuant to subdivision (b) of Section 48915.1.
(5) Notice of the opportunity for the pupil or the pupil's parent
or guardian to appear in person or to be represented by legal counsel
or by a nonattorney adviser, to inspect and obtain copies of all
documents to be used at the hearing, to confront and question all
witnesses who testify at the hearing, to question all other evidence
presented, and to present oral and documentary evidence on the pupil'
s behalf, including witnesses. In a hearing in which a pupil is
alleged to have committed or attempted to commit a sexual assault as
specified in subdivision (n) of Section 48900 or committing a sexual
battery as defined in subdivision (n) of Section 48900, a complaining
witness shall be given five days' notice before being called to
testify, and shall be entitled to have up to two adult support
persons, including, but not limited to, a parent, guardian, or legal
counsel, present during their testimony. Before a complaining witness
testifies, support persons shall be admonished that the hearing is
confidential. This subdivision shall not preclude the person
presiding over an expulsion hearing from removing a support person
whom the presiding person finds is disrupting the hearing. If one or
both of the support persons is also a witness, the provisions of
Section 868.5 of the Penal Code shall be followed for the hearing.
This section does not require a pupil or the pupil's parent or
guardian to be represented by legal counsel or by a nonattorney
adviser at the hearing.
(A) For purposes of this section, "legal counsel" means an
attorney or lawyer who is admitted to the practice of law in
California and is an active member of the State Bar of California.
(B) For purposes of this section, "nonattorney advisor" means an
individual who is not an attorney or lawyer, but who is familiar with
the facts of the case, and has been selected by the pupil or pupil's
parent or guardian to provide assistance at the hearing.
(c) (1) Notwithstanding Section 35145, the governing board of the
school district shall conduct a hearing to consider the expulsion of
a pupil in a session closed to the public, unless the pupil requests,
in writing, at least five days before the date of the hearing, that
the hearing be conducted at a public meeting. Regardless of whether
the expulsion hearing is conducted in a closed or public session, the
governing board of the school district may meet in closed session
for the purpose of deliberating and determining whether the pupil
should be expelled.
(2) If the governing board of the school district or the hearing
officer or administrative panel appointed under subdivision (d) to
conduct the hearing admits any other person to a closed deliberation
session, the parent or guardian of the pupil, the pupil, and the
counsel of the pupil also shall be allowed to attend the closed
deliberations.
(3) If the hearing is to be conducted at a public meeting, and
there is a charge of committing or attempting to commit a sexual
assault as defined in subdivision (n) of Section 48900 or committing
a sexual battery as defined in subdivision (n) of Section 48900, a
complaining witness shall have the right to have his or her testimony
heard in a session closed to the public when testifying at a public
meeting would threaten serious psychological harm to the complaining
witness and there are no alternative procedures to avoid the
threatened harm, including, but not limited to, videotaped deposition
or contemporaneous examination in another place communicated to the
hearing room by means of closed-circuit television.
(d) Instead of conducting an expulsion hearing itself, the
governing board of the school district may contract with the county
hearing officer, or with the Office of Administrative Hearings
pursuant to Chapter 14 (commencing with Section 27720) of Part 3 of
Division 2 of Title 3 of the Government Code and Section 35207
of this code , for a hearing officer to conduct the hearing.
The governing board of the school
district may also appoint an impartial administrative panel of
three or more certificated persons, none of whom is a member of the
governing board of the school district or employed on the staff of
the school in which the pupil is enrolled. The hearing shall be
conducted in accordance with all of the procedures established under
this section.
(e) Within three schooldays after the hearing, the hearing officer
or administrative panel shall determine whether to recommend the
expulsion of the pupil to the governing board of the school district.
If the hearing officer or administrative panel decides not to
recommend expulsion, the expulsion proceedings shall be terminated
and the pupil immediately shall be reinstated and permitted to return
to the classroom instructional program from which the expulsion
referral was made, unless the parent, guardian, or responsible adult
of the pupil requests another school placement in writing. Before the
placement decision is made by the parent, guardian, or responsible
adult, the superintendent of schools or the superintendent's designee
shall consult with the parent, guardian, or responsible
adult, adult regarding any other school
placement options for the pupil in addition to the option to return
to his or her classroom instructional program from which the
expulsion referral was made. The decision not to recommend expulsion
shall be final.
(f) (1) If the hearing officer or administrative panel recommends
expulsion, findings of fact in support of the recommendation shall be
prepared and submitted to the governing board of the school
district. All findings of fact and recommendations shall be based
solely on the evidence adduced at the hearing. If the governing board
of the school district accepts the recommendation calling for
expulsion, acceptance shall be based either upon a review of the
findings of fact and recommendations submitted by the hearing officer
or panel or upon the results of any supplementary hearing conducted
pursuant to this section that the governing board of the school
district may order.
(2) The decision of the governing board of the school district to
expel a pupil shall be based upon substantial evidence relevant to
the charges adduced at the expulsion hearing or hearings. Except as
provided in this section, no evidence to expel shall be based solely
upon hearsay evidence. The governing board of the school district or
the hearing officer or administrative panel may, upon a finding that
good cause exists, determine that the disclosure of either the
identity of a witness or the testimony of that witness at the
hearing, or both, would subject the witness to an unreasonable risk
of psychological or physical harm. Upon this determination, the
testimony of the witness may be presented at the hearing in the form
of sworn declarations that shall be examined only by the governing
board of the school district or the hearing officer or administrative
panel. Copies of these sworn declarations, edited to delete the name
and identity of the witness, shall be made available to the pupil.
(g) A record of the hearing shall be made. The record may be
maintained by any means, including electronic recording, so long as a
reasonably accurate and complete written transcription of the
proceedings can be made.
(h) (1) Technical rules of evidence shall not apply to the
hearing, but relevant evidence may be admitted and given probative
effect only if it is the kind of evidence upon which reasonable
persons are accustomed to rely in the conduct of serious affairs. A
decision of the governing board of the school district to expel shall
be supported by substantial evidence showing that the pupil
committed any of the acts enumerated in Section 48900.
(2) In hearings that include an allegation of committing or
attempting to commit a sexual assault as defined in subdivision (n)
of Section 48900 or committing a sexual battery as defined in
subdivision (n) of Section 48900, evidence of specific instances, of
a complaining witness' prior sexual conduct is to be presumed
inadmissible and shall not be heard absent a determination by the
person conducting the hearing that extraordinary circumstances exist
requiring the evidence be heard. Before the person conducting the
hearing makes the determination on whether extraordinary
circumstances exist requiring that specific instances of a
complaining witness' prior sexual conduct be heard, the complaining
witness shall be provided notice and an opportunity to present
opposition to the introduction of the evidence. In the hearing on the
admissibility of the evidence, the complaining witness shall be
entitled to be represented by a parent, guardian, legal counsel, or
other support person. Reputation or opinion evidence regarding the
sexual behavior of the complaining witness is not admissible for any
purpose.
(i) (1) Before the hearing has commenced, the governing board of
the school district may issue subpoenas at the request of either the
superintendent of schools or the superintendent's designee or the
pupil, for the personal appearance of percipient witnesses at the
hearing. After the hearing has commenced, the governing board of the
school district or the hearing officer or administrative panel may,
upon request of either the county superintendent of schools or the
superintendent's designee or the pupil, issue subpoenas. All
subpoenas shall be issued in accordance with Sections 1985, 1985.1,
and 1985.2 of the Code of Civil Procedure. Enforcement of subpoenas
shall be done in accordance with Section 11455.20 of the Government
Code.
(2) Any objection raised by the superintendent of schools or the
superintendent's designee or the pupil to the issuance of subpoenas
may be considered by the governing board of the school district in
closed session, or in open session, if so requested by the pupil
before the meeting. Any decision by the governing board of the school
district in response to an objection to the issuance of subpoenas
shall be final and binding.
(3) If the governing board of the school district, hearing
officer, or administrative panel determines, in accordance with
subdivision (f), that a percipient witness would be subject to an
unreasonable risk of harm by testifying at the hearing, a subpoena
shall not be issued to compel the personal attendance of that witness
at the hearing. However, that witness may be compelled to testify by
means of a sworn declaration as provided for in subdivision (f).
(4) Service of process shall be extended to all parts of the state
and shall be served in accordance with Section 1987 of the Code of
Civil Procedure. All witnesses appearing pursuant to subpoena, other
than the parties or officers or employees of the state or any
political subdivision thereof, shall receive fees, and all witnesses
appearing pursuant to subpoena, except the parties, shall receive
mileage in the same amount and under the same circumstances as
prescribed for witnesses in civil actions in a superior court. Fees
and mileage shall be paid by the party at whose request the witness
is subpoenaed.
(j) Whether an expulsion hearing is conducted by the governing
board of the school district or before a hearing officer or
administrative panel, final action to expel a pupil shall be taken
only by the governing board of the school district in a public
session. Written notice of any decision to expel or to suspend the
enforcement of an expulsion order during a period of probation shall
be sent by the superintendent of schools or his or her designee to
the pupil or the pupil's parent or guardian and shall be accompanied
by all of the following:
(1) Notice of the right to appeal the expulsion to the county
board of education.
(2) Notice of the education alternative placement to be provided
to the pupil during the time of expulsion.
(3) Notice of the obligation of the parent, guardian, or pupil
under subdivision (b) of Section 48915.1, upon the pupil's enrollment
in a new school district, to inform that school district of the
pupil's expulsion.
(k) (1) The governing board of the school district shall maintain
a record of each expulsion, including the cause for the expulsion.
Records of expulsions shall be a nonprivileged, disclosable public
record.
(2) The expulsion order and the causes for the expulsion shall be
recorded in the pupil's mandatory interim record and shall be
forwarded to any school in which the pupil subsequently enrolls upon
receipt of a request from the admitting school for the pupil's school
records.
SEC. 9. If the Commission on State Mandates determines that this
act contains costs mandated by the state, reimbursement to local
agencies and school districts for those costs shall be made pursuant
to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of
the Government Code.