Kevin
Welcome back to the Kelly & Kelly law podcast. I’m Kevin with Borealis Digital Marketing. And today I’m joined once again by attorney Mike Kelly, head of the criminal defense department at Kelly & Kelly PC.
How are you doing Mike?
Mike
Real good today, Kevin. Thanks for having me on again.
Kevin
Absolutely. Thanks for making time. Today, what we’re gonna do is we’re gonna discuss school offenses in Michigan. What they are, how they’re handled, why situations start as school discipline issues, but can quickly escalate into something greater, like a criminal case. So, let’s just start by kind of defining them.
My understanding is that there’s two buckets. You can have school disciplinary issues and then criminal offenses that happen on school grounds.
Mike
Yeah, I mean, when you look at the two variances, you have your student code of conduct, which prescribes all the administrative rules of the school, of the building, expectations of the students, dress code, attendance. These are things that are specific to the student code. They also have things that are specific offenses, bullying, hazing, fighting, and things that then tend to blend over, who also have kind of a mirrored “code” or codification in a criminal sense, meaning things like fighting are called “assault & battery”. Hazing is also something that can be criminalized. Bullying is also criminal behavior.
So you have these two buckets, as you say, to where a violation of the rules of the school could also boil over to being a violation of the criminal rules of conduct in the state of Michigan.
Kevin
That’s interesting. And I kind of wonder when it comes to bullying, you know, bullying’s obviously a serious matter. When does it escalate into more of a criminal offense as opposed to kids just being, I guess, mean, for lack of a better term?
Mike
Well, I think when you’re getting into a persistent and repetitive nature, and also then the content in the substance of the bullying, I’ve seen a lot of stuff, especially with use of computers, with social media, with electronic devices, texting, things like that, where kids are setting these things up instantaneously, but the repetitive nature of it tends to take something that could be an isolated comment in itself calling somebody a name to the repeated sequence of those events, rising to the level of criminal behavior. And other things like creating memes, GIFs, images that represent a person, albeit are fictitious or AI-generated images, these are things now that we’re seeing that kids are obviously doing throughout the school day, at home, but they’re then being shared at school or being shared or created using school computers. These are where you have not only school violations, but then also instances where there’s criminal consequences in the court.
Kevin
It’s a lot different from when I was in school, I can say that.
Mike
Oh, light years.
Kevin
Yeah, and with AI and everything, it’s affecting everything, and I guess this is no exception. And now there’s different levels of school, of course, you have elementary, high school, and juvenile versus adult, I imagine the offenses might be treated differently when it’s a college student, let’s say, caught drinking on campus, as opposed to something at the high school level.
Mike
Well, certainly you have ages that are gonna be treated differently. And the Michigan Revised School Code kind of carves out the disciplinary action that is appropriate for lower elementary kids to the high school kids that above, the older you get, certainly the more serious the consequences can be.
But it’s still no small matter to be a juvenile, somebody that’s not an adult, somebody that’s under the age of 18, and be facing consequences for school behavior that could also then have court consequences. In Michigan, we have the juvenile courts, and we have the adult courts. The decision on how you’re gonna end up in one of those or the other, well, is gonna be up to a couple of different factors. One of them is gonna certainly depend on what you did. Of the type of offense, let’s say is specific to juveniles, something like skipping school, encouragements, truancy, those types of issues that are really specific just to a juvenile, only a juvenile can commit them, as opposed to more greater offenses than adult charge, something that if committed by an adult would be a crime.
If the charge is more serious, it’s likely that you could still be charged as an adult. We’re talking murder, arson, robbery, serious assault, sexual assault, sexually explicit material containing a child, creating child pornography, those type of things, certainly you could still be charged as an adult. If you’re only facing, I don’t mean only to minimize it, but if you’re always still facing the juvenile charge, there are still serious consequences for a juvenile charge. One of the players in deciding which path your case may be on is not only a school administrator, but could also be the school resource officer, the police officer within the building. He’s in charge of investigating the case and ultimately submitting it to the prosecutor. And he can submit it and request for it to be processed as a juvenile matter, or he can request for it to be processed as an adult matter. It’ll ultimately be up to the prosecutor to decide how to charge the case.
You can try to have some influence maybe early on by having a lawyer that might be able to insert some information and mitigate or present some compelling evidence that maybe it should stay on one track, a lower track than the other, but ultimately it’s a decision that’s out of your hands.
Kevin
I think that’s an important distinction and why it’s important that something that may seem small, like being sent to the principal’s office or a suspension or something can turn into something much larger. So these should be taken seriously, like you said, especially nowadays.
Zero tolerance policy. What is the ‘zero tolerance policy’?
Mike
So some schools have these things, like you bring a weapon to school, or certainly a look-alike weapon to school. They’re gonna take a zero tolerance on these issues. You’re automatically gonna be facing school disciplinary action in the form of a long-term suspension or expulsion. I had a case where certain individual brought like a look-alike gun or a airsoft gun to the school. It doesn’t matter if it didn’t intend to look, you know, it wasn’t the actual thing. The law even carves out look-alike things. We don’t know what that gun can do until somebody pulls the trigger. So even look-alike devices can be still under a zero tolerance thing.
Knives look talking about blade length, certain blade length when you’re talking about it being of a certain shorter distance of three and a half inches up through a four or more. You’re talking about being more of a dangerous weapon, something where it’d be a felony weapon. These would be the types of things that I’ve seen people get treated on as zero tolerance policy.
Sometimes they take it as far as drugs or other violations that could take a zero tolerance on. But really we’re talking about violent, dangerous, and harmful possession charges or allegations that are falling into that zero tolerance category.
Kevin
Okay, so there’s some discretion there, I see. Can you talk about the long-term consequences that parents might not expect? You did touch on it briefly.
Mike
So if a student is facing a disciplinary action that’s gonna ultimately land them outside of school for a long period of time as a result of a suspension or an expulsion, there is immediate and long-term consequences to that. The first start of the educational consequences that the student may not be able to get into, certainly another public school, in the surrounding area or nearby or in Michigan during the duration of the student’s removal. Parents will have to find some other way for the student to continue their education. They can’t simply sit on their hands and say, “You kicked them out of school, what are we supposed to do?” The school may offer some supportive services while the student’s out, but it’s not always a must. So the immediate consequence you see there is how you’re gonna figure out education if a student’s kicked out of school. The other side is then you’re getting into the criminal consequences, having to go to court, the possibility of having a juvenile or a criminal record from something like this, certain types of offenses that it could also, if it was of a sexual or a child-related manner could prohibit the student from living near the school in certain proximities, attending public school, and then you carry that over as you get to an older kid, it’s like, oh, maybe 16, 17, 18 going off to college. What about not being able to live in the dorms? What about not being able to receive financial aid if they’re convicted of a drug crime because they don’t wanna give you money if they think that you’re gonna go ahead and use it to buy drugs and sell drugs, understandably.
So there are certain long-term consequences to this seemingly juvenile adolescent behavior that occurs in the school place that parents may be not thinking of immediately, but they should be concerned about when their son or daughter is facing the situation.
Kevin
All right, that’s good information. And on that note, at what point do you feel that a parent should contact an attorney and how can a student defense attorney at Kelly & Kelly help?
Mike
Well, if you think you have any of these issues where whether you’re talking about juvenile record implications, college admission issues, scholarship eligibility or athletic participation, future employment, or even driver’s license consequences, these are the types of things that you’re gonna wanna reach out to in contacting an attorney to discuss. Don’t go at this on your own. At least set up the time to have a consultation with me or somebody who’s familiar with the school law issues and come up with a plan. Certainly I’m gonna have a short-sighted plan and a long-term plan.
I call this a fire safety drill for the families that I work with. They’ve gotta have a plan that what happens if in the event that our son or daughter is called down to the principal’s office or by a school resource or what do you do? They shouldn’t make statements without understanding the rights. You should have a plan and an expectation that your student’s going to be questioned without the involvement of the parents, because the school is acting in place of parents when you drop them off there, and that they can question your son or daughter, they could search their belongings in effect, they can search their lockers. Have a plan for what happens if this is the case. If these things are already going on, I encourage my families to keep things in writing. Instead of placing calls, send emails. Keep good records of what the school is telling you and what you’re being told in response.
And certainly having a defense attorney early. You wanna have somebody ready to go and already lined up. I meet with families a lot of the time that maybe there’s not something going on right now, but they just wanna be assured that in the event something happens, they do have a fire safety plan. They have an attorney who was aware of the issues before they became bigger. And I was then ready to step in immediately when things were escalated to a higher level.
Kevin
Due diligence is important. Well, thank you for sharing your legal insights on this topic, Mike. It’s been very informative.
Mike
Absolutely. I hope everybody has a safe day. And if you need anything, as always, call Kelly.
Kevin
Absolutely. Have a good day, Mike.
Mike
All right, thank you.
