Court Rules Student Dismissed From Charter School Was Not “Expelled,” Thus Not Entitled To Evidentiary Hearing

A student was dismissed from a charter high school for brandishing a knife in class.  The student sued to challenge his removal from the school, asserting that his weapon was not a knife under the Education Code definition and that he was entitled to an evidentiary hearing.  The trial court disagreed with both arguments and dismissed the case.  On appeal, the Fourth District Court of Appeal affirmed the trial court decision.  (Scott B. v. Bd. of Trustees of Orange County High School of Arts (--- Cal.Rptr.3d ----, Cal.App. 4 Dist., June 14, 2013).


A charter high school, Orange County High School of the Arts (“OCHSA”), had disciplinary problems with Scott B.  Scott accumulated 52 demerits, and OCHSA’s rules allowed for a student to be dismissed after accumulating less than half as many.  The breaking point came when Scott brandished a knife in class and threatened other students.  Scott was suspended for five days while the Santa Ana police investigated the incident. 

Scott had been diagnosed with attention deficit/hyperactivity disorder (ADHD) as a young child.  School officials conducted a manifestation determination, determined the behavior was not related to his disability, and subsequently “dismissed” Scott from OCHSA.  Scott appealed the decision to the OCHSA Board, which unanimously affirmed Scott’s dismissal in a one-sentence letter without findings.

Scott next sought a CCP 1094.5 writ, alleging: 1) the weapon he brought to school did not meet the Education Code’s definition of a knife, and 2) that the OCHSA Board failed to provide a basis for its dismissal decision.  The trial court dismissed the petition and Scott appealed.


The Fourth District Court of Appeal affirmed the trial court decision.  The appellate court rejected Scott’s argument that the weapon was not a knife within the definition in Education Code section 48915, subdivision (g).  The appellate court noted that the statutory definition lists many examples of objects with “prohibited characteristics,” and that blade length was only one of several alternate criteria listed for a district or school to consider, not a mandatory requirement.

The appellate court also rejected Scott’s argument that, under the Education Code, he was entitled to an evidentiary hearing before being “dismissed.”  The appellate court concluded that, under Education Code section 47610, Education Code section 48918 does not apply to charter schools, unless a charter school specifically adopts it, and OCHSA had not adopted section 48918.  Moreover, from the appellate court’s perspective Scott was not “expelled,” but instead was “dismissed,” which it ruled did not implicate due process rights in the same manner as expulsion, because the student still had the right to enroll in his school of residence. 

What This Means To You

Charter schools sometimes use terms such as “dismiss,” or “disenroll” to release a student.  In your county, student release from a charter school might not be treated the same as expulsion depending upon the charter and MOU.  This appellate court held section 44918 requirements for an expulsion hearing do not apply to charter schools, unless specifically adopted by the charter and/or MOU.  Therefore, you may want to make sure that some form of due process for students is included in any charter petition you authorize.  Clients should be aware students who are dismissed instead of expelled from a charter school may attempt to rely upon this decision to immediately enroll in the public school of their residence or request inter-district attendance.  Also, be aware that the re-enrollment procedures under Education Code section 48915.1 probably do not apply to a charter school student who has been “dismissed” but not “expelled.”

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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