Legal Question in Education Law in California

Re: 5th grader rights to go to the restroom

Your fifth grader definitely has the right to use the restroom as needed within reason. As framed , your question indicates he may have been denied this right so that expulsion is not warranted.

The first thing to check would be the District's Board Policy and procedures relating to expulsions and suspensions. These policies must be strictly followed in expulsion proceedings or there may be a due process violation and the expulsion or suspension reversed. In addition an expulsion hearing must be given. Furthermore, the student must also have been given proper notice and an opportunity to be heard or a due process violation exists and the suspension or expulsion can be reversed.

Generally expulsion is a last resort for children only after other means of correction do not work and may not be imposed unless the District has reviewed alternatives. Also a student may not usually be expelled unless they have been suspended for the maximum period of time allowed under the District's Board policy (usually 5 days straight). However, a student may be expelled for a first offense for certain violations (urinating in a classroom would probably suffice). These cases are usually very factually driven and vary from case to case.

There are usually short time frames in which an appeal must be made after a suspension and/or expulsion (Usually around 2 weeks)so make sure that you have hired counsel experienced in Education Law, such as our firm, so that you are prepared for the hearing should you desire to appeal the expulsion or suspension. If you have any additional questions please don't hesitate to call our firm.