School's Burden to Prove Vaping Device Possession Before Discipline

Attorney Answer

The school has to follow specific procedures before it can suspend or expel your son, and an expulsion decision must rest on substantial evidence — not on the fact that he was standing in a group. Whether he can be kept out of the ceremony itself is a separate question, governed largely by district policy rather than by statute.

Which disciplinary category applies depends on what the devices actually were. If they are treated as containing tobacco or nicotine, the relevant ground is Cal. Educ. Code § 48900(h), which covers possession or use of tobacco or nicotine products. If they are treated as cannabis concentrate devices instead, the school would be relying on a different category within that same section. You are entitled to be told which one the school is invoking.

For a suspension, California law requires an informal conference before the discipline is imposed, at which the student must be told the reason for the action and the evidence against him, and must be given the chance to present his own version and evidence (Cal. Educ. Code § 48911). If the school moves toward expulsion instead, a formal hearing is required, the decision must be supported by substantial evidence, and by statute the decision cannot be based solely on hearsay (Cal. Educ. Code § 48918). Where nothing was recovered from your son and no citation was issued, that standard is directly relevant.

So the answer to your core question is yes: you can ask, in writing, exactly what evidence the school has tying your son personally to a device, rather than tying him to a group that was stopped.

Timing matters here. With graduation days away, any request for the evidence, for a conference, or for a hearing should go to the school in writing immediately. The applicable timelines come from a mix of the Education Code and your district's own policies, so have someone review your specific notice and the district's discipline policy rather than relying on a general timeline.

What you can do

1. Request in writing, today, the specific evidence the school has that your son personally possessed a device — not evidence about the group. 2. Ask in writing which Education Code ground the school is charging and what discipline is actually proposed: suspension, exclusion from the ceremony, or expulsion. 3. Request the informal conference or hearing immediately, noting that no citation was issued and nothing was recovered from him. 4. Ask the school directly, in writing, whether barring him from the ceremony is being treated as separate from formal discipline, since different rules may apply. 5. Given the compressed timeframe, contact a California education attorney or a student-rights advocacy organization today rather than waiting to see what the school does.