Charles S. v. Board of Education

• Citation: 97 Cal.Rptr. 422,20 Cal.App.3d 83
• Court: California Court of Appeals
• Decision Date: 20 September 1971
• Parties: Charles S., a minor, by James S., his Guardian Ad Litem, on behalf of himself and all others similarly situated, Plaintiffs and Appellants, v. BOARD OF EDUCATION, SAN FRANCISCO UNIFIED SCHOOL DISTRICT, and Principal, Balboa High School, Defendants and Respondents. Civ. 28005.

Page 422

97 Cal.Rptr. 422

20 Cal.App.3d 83

Charles S., a minor, by James S., his Guardian Ad Litem, on behalf of himself and all others similarly situated, Plaintiffs and Appellants, v. BOARD OF EDUCATION, SAN FRANCISCO UNIFIED SCHOOL DISTRICT, and Principal, Balboa High School, Defendants and Respondents.

Civ. 28005.

Court of Appeal, First District, Division 1, California.

Sept. 20, 1971.

Hearing Denied Nov. 18, 1971.

Barbara Kass, Kenneth Hecht, Youth Law Center, Michael S. Sorgen, San Francisco Neighborhood Legal Assistance Foundation, San Francisco, for plaintiffs and appellants.

Thomas M. O'Connor, City Atty., Raymond D. Williamson, Jr., Deputy City Atty., San Francisco, for defendants and respondents; Irving G. Breyer, San Francisco, of counsel.

ELKINGTON, Associate Justice.

The primary question on this appeal is whether Education Code, section 10607 ¹ (third paragraph), prescribing the procedure on suspension of a public school student, comports with state and federal constitutional requirements of due process of law.

A petition for writ of mandate was filed in the superior court on behalf of Charles S., a minor (whose full name for reasons which will become obvious is omitted), and all other persons similarly situated, including eight others expressly named. Each of the nine persons had been suspended from high school pending disposition of juvenile court proceedings against him.

The petitioners sought a court order: (1) terminating their suspensions pending a 'full due process hearing,' (2) that the school record of their illegal suspensions be expunged of 'harmful notations,' and (3) that additional educational programs be provided them 'so that they can regain the valuable schooling missed as a result of the illegal disciplinary action.'

They further sought a declaration of the superior court that 'Section 10607 of the California Education Code requires a due process hearing within three days after the commencement of any school suspension from a California public school, or in the alternative that such statute is unconstitutional for not providing the nature of hearing required by due process, and further that this Court declare for the parties to this controversy what nature of hearing due process requires within three days of a suspension from a public high school.' It is the trial court's refusal to so declare upon which petitioners' principal contention on this appeal is based.

The appeal is taken from the superior court's 'Order Denying Petition for Writ of Mandamus.' Such an order is appealable; see Daggs v. Personnel Commission, 1 Cal.App.3d 925, 930, 82 Cal.Rptr. 157.

The case was tried on declarations of witnesses from which the following facts could have been, and presumably were, found to be true by the trial court.

The primary petitioner, 17 years old, and a California Youth Authority parolee, and the other eight named persons, 14 to 17 years of age, were students of a San Francisco high school. During the month of September 1969, serious disturbances occurred at and around the school. At the time the nine juveniles were arrested for offenses ranging through kidnaping, rape, assault upon a police officer, assault with a bumper jack, assault resulting in the death of a boy whose head struck a sidewalk curb, carrying a concealed weapon, and disturbing the peace. The alleged offenses appear to have occurred at times when the students should have been in class. Juvenile court proceedings were instituted in each case. At about the same time each of the nine students was suspended from school for the reasons which brought about the juvenile court proceedings; these are the suspensions which are the basis of the instant action and appeal.

Although the evidence is to some extent in conflict, a serious doubt arises therefrom as to the fidelity with which the school authorities followed the requirements of the third paragraph of section 10607 relating to 'meetings' with the parents or guardians of the suspended students. Petitioners, however, appear to make no real complaint over any such deficiency; they emphasize that the issue before us 'is one of law, not of fact.'

Before proceeding further it seems proper to dispose of petitioners' repeated and insistent claims that they were 'indefinitely suspended.' Such, if it were true, would be tantamount to expulsion from school--a denial of one's right to an education. (See Madera v. Board of Education of City of New York, 2 Cir., 386 F.2d 778, 784; Knight v. State Board of Education, D.C., 200 F.Supp. 174, 178.) Obviously the demands of due process upon an expulsion must be stricter than upon a reasonably limited suspension. Indeed, in a case of expulsion section10608 ² calls for a 'hearing' and 'decision' with the implied due process connotations of those terms.

But such claims of indefinite suspensions are wholly without support in the record. Furthermore, at the oral argument on this appeal it was conceded that each suspension terminated no later than the related decision of the juvenile court. Such terminations were in full compliance with Education Code, section 10607.5 authorizing extension of a suspension 'until such time as the juvenile court * * * has rendered a decision in the action.'

And we observe that the Education Code expressly forbids indefinite suspension of public school students. Teachers may suspend a pupil 'for not exceeding one schoolday, plus the remainder of the schoolday during which the suspension is ordered, * * *' (§ 10601.) Suspension by a principal 'shall not exceed 10 schooldays.' (§ 10601.5.) Section 10607.5 provides, '* * * no student shall be suspended from school for more than 20 days in a school year,' excepting cases of 'transfer to another regular school for adjustment purposes, (in which case) additional days of suspension are limited to 10,' and excepting also juvenile court cases, discussed ante. And even where the suspension is related to pending juvenile court proceedings, that court is admonished to be 'expeditious' in the proceedings. (Welf. & Inst. Code, § 680.)

We come now to petitioners' real contention. They argue that section 10607 does not meet 'minimum requirements' of due process before a public school student's suspension will be permitted. These minimum requirements, they insist, are: (1) The student must be given written notice of the pertinent charges and of his right to a hearing; (2) He must be allowed discovery of the school's evidence in order that his case be properly prepared; (3) A hearing must be held, at which he shall have the right (4) to counsel, (5) to an 'impartial decision-maker,' (6) to present evidence, (7) to confront and cross-examine adverse witnesses, (8) to written findings of fact based only upon substantial evidence produced at the hearing, and (9) to record the hearing at his own expense.

We first consider the contention that section 10607 denies due process of law to suspended public school students.

Due process of law is susceptible of no simple definition. We are well guided, however, by several writings of our state's Supreme Court.

'The various conflicting cases demonstrate that there is no rule of universal application concerning the right of an individual to present his views at a hearing prior to the institution of action affecting his substantial rights. What is due process depends on circumstances. It varies with the subject matter and the necessities of the situation. (Holmes, J., in Moyer v. Peabody (1909) 212 U.S. 78, 84, 29 S.Ct. 235, 53 L.Ed. 410.) Its content is a function of many variables, including the nature of the right affected, the degree of danger caused by the proscribed condition or activity, and the availability of prompt remedial measures. * * *' (Sokol v. Public Utilities Commission, 65 Cal.2d 247, 254, 53 Cal.Rptr. 673, 678, 418 P.2d 265, 270.)

'The contours of due process * * * are not always the same. As the court noted in Cafeteria & Restaurant Workers (Union, Local 473, AFL--CIO) v. McElroy (1961) 367 U.S. 886, 895, 81 S.Ct. 1743, 1748, 6 L.Ed.2d 1230, 1236, 'The very nature of due process negates any concept of inflexible procedures universally applicable to every imaginable situation. * * * (C)onsideration of what procedures due process may require under any given set of circumstances must begin with a determination of the precise nature of the governmental function involved as well as of the private interest that has been affected by governmental action. " (Endler v. Schutzbank, 68 Cal.2d 162, 170, 65 Cal.Rptr. 297, 303, 436 P.2d 297, 303.)

"(D)ue process is not interested in mere technical formalism. It is the substance that is determinative of whether due process has been afforded." (O'Reilly v. Board of Medical Examiners, 66 Cal.2d 381, 384, 58 Cal.Rptr. 7, 9, 426 P.2d 167, 169.)

'It has always been recognized that 'the more important the rights at stake the more important must be the procedural safeguards surrounding those rights.' (Speiser v. Randall (1968), supra, 357 U.S. 513, 520--521, 78 S.Ct. 1332, 2 L.Ed.2d 1460, (1469).)' (Flack v. Municipal Court, 66 Cal.2d 981, 992, 59 Cal.Rptr. 872, 879, 429 P.2d 192, 199.)

The courts have often spoken on the subject of due process in the application of sanctions for academic misbehavior. It has been said that any analogy of student discipline to adult or juvenile criminal proceedings is not sound, and both impractical and detrimental to the educational atmosphere and functions. (See Perlman v. Shasta Joint Jr. College Dist. Bd. of Trustees, 9 Cal.App.3d 873, 879, 88 Cal.Rptr. 563; Goldberg v. Regents of the University of California, 248 Cal.App.2d 867, 881, 57 Cal.Rptr. 463; Banks v. Board of Public Instruction of Dade County, D.C., 314 F.Supp. 285, 290, 292; Esteban v. Central Missouri State College, D.C. 290 F.Supp. 622, 628--629.) In the imposition of such sanctions a 'full dress judicial hearing' is not required. (Goldberg v. Regents of the...