Aguirre v. San Bernardino City Unified School Dist.

Decision Date16 December 1980
Citation170 Cal.Rptr. 206,113 Cal.App.3d 380
CourtCalifornia Court of Appeals Court of Appeals
PartiesJohn AGUIRRE, a Minor by Clara Aguirre, as Guardian Ad Litem, Plaintiff and Appellant, v. SAN BERNARDINO CITY UNIFIED SCHOOL DISTRICT et al., Defendants and Respondents. Civ. 21303.
OPINION

TAMURA, Acting Presiding Justice.

More than 20 years ago Professor Warren A. Seavey expressed outrage over the failure of state educational institutions to accord students normal procedural safeguards before imposing disciplinary sanctions and was equally shocked "to find that a court supports them in denying to a student the protection given to a pickpocket." (Seavy, Dismissal of Students: "Due Process," 70 Harv.L.Rev. 1406, 1407.) Today we are called upon to decide whether a student facing expulsion from a public high school is entitled to one of the most basic procedural safeguards known to American constitutional jurisprudence-the right of confrontation and cross-examination.

One evening following a high school freshman football game, a fight involving a number of the players apparently erupted on the district's San Bernardino High School campus. No teachers, coaches or other school officials witnessed the incident. The following day, the mother of a team member informed the school administration that her son and another boy had been assaulted and injured during the fight. Vice Principal Fitzgerald was assigned to investigate the incident. He talked with eight students, including plaintiff, then a 14-year-old freshman, who were allegedly involved in the altercation and took their signed statements. Thereafter, plaintiff was suspended from school for his alleged participation in the fight and notice of the suspension was sent to plaintiff's mother.

A few days later, the school principal wrote to plaintiff's mother informing her that he was recommending that her son be expelled for assaulting and injuring two students without any provocation 1 and that plaintiff would remain on suspension pending resolution of the matter. Several days later, the district superintendent's office informed plaintiff's mother by letter that a hearing had been scheduled on the question of plaintiff's expulsion. The letter reiterated the charge upon which the proposed expulsion was based and informed plaintiff and his mother that they would have an "opportunity to participate in the discussion of his case," that they could "present evidence, both oral and documentary," and that they might be accompanied by a friend or advisor or, if they desired, might "employ and be represented by counsel." Enclosed with the letter was a copy of the school district's rules on student discipline which contained a recital of the matters required to be included in a notice of an expulsion hearing. 2

On the appointed day, the expulsion matter came on for hearing before a three-member panel composed of certificated employees of the district who were not employed at the high school attended by plaintiff. 3 Plaintiff, his mother, and Vice Principal Fitzgerald were in attendance. The chairperson of the hearing panel opened the proceedings by telling plaintiff and his mother that the purpose of the hearing was to afford them the opportunity to hear the charges and the information gathered by the school staff, the chance to refute or add to that information, and to make statements on plaintiff's behalf. The chairperson then read into the record a letter from the high school principal to the district superintendent recommending plaintiff's expulsion for the alleged assaults, 4 Mr. Fitzgerald's written report of his investigation, and signed statements Mr. Fitzgerald had obtained from the eight students he had interviewed. After reading the foregoing matters into the record, the chairperson turned to plaintiff and asked: "What exactly happened that day after the football game?" Plaintiff was thereafter questioned by panel members concerning the incident and also concerning his attendance record and an incident in which he was reported to have hit another student in class.

In the statements which Mr. Fitzgerald obtained from the students, each gave a somewhat different version of the incident; six, however, said that plaintiff had either struck or kicked the two boys who were allegedly injured. Plaintiff, both in his statement to Mr. Fitzgerald and at the hearing, maintained that he neither struck nor kicked the boys. He did admit holding one of them. He characterized the entire incident as "play boxing" such as often took place after football practice or games. In response to questions from the panel, plaintiff insisted that the incident had not been racially motivated; he denied he had yelled, "White boy" or chased the two boys at the beginning of the melee. He also felt that the two boys could not have been injured because they attended and took part in football practice the following Monday. Vice Principal Fitzgerald stated that at the time he conducted his investigation the boys "didn't have any obvious injuries," but that from the statements they made he was of the view that they were "in pain, at the time of the fight." Plaintiff's mother told the panel that plaintiff had never been in serious trouble before.

The hearing panel found that plaintiff along with another student "took part in an unprovoked attack on two students" and recommended that plaintiff be expelled for the remainder of the school year (circa 61/2 months); it also recommended that he be readmitted "upon receipt of a letter from a licensed therapist indicating satisfactory involvement in a counseling program." The school board adopted the hearing panel's recommendation and ordered plaintiff expelled for the remainder of the school year. Plaintiff appealed the expulsion to the County Board of Education, but the board, after hearing, affirmed the school board's decision.

Plaintiff filed a petition for administrative mandamus for review and vacation of the expulsion order on the ground he was denied procedural due process before the administrative hearing panel. In the course of the hearing, the trial court, over plaintiff's objection, permitted the district to file approximately 30 declarations from district school administrators to the effect that it was essential to the safety and welfare of students on their respective campuses that schools be able to discipline students without subjecting their accusers to confrontation and cross-examination because otherwise fear of retaliation would make students reluctant to give information on disciplinary matters. 5

The court decided that plaintiff's administrative hearing had been fair and after exercising its independent judgment on the evidence determined that the hearing panel's findings were supported by the weight of the evidence. The court made findings of fact and conclusions of law accordingly and entered judgment denying the petition for writ of mandate. Plaintiff appeals from the judgment.

Plaintiff's primary contention and the one we have found to be determinative of this appeal is that the due process clauses of the federal and state Constitutions guaranteed to him the right of confrontation and cross-examination and that deprivation of that right rendered his expulsion invalid. The school district initially urges that plaintiff's readmission to school for the 1979-1980 school year has rendered the appeal moot. In any event, the district maintains that due process in an expulsion hearing does not encompass the right to confront and cross-examine adverse witnesses and that plaintiff's hearing was conducted in strict compliance with all constitutional and statutory procedural requirements.

For reasons we explain below, we have decided that this appeal has not been rendered moot by plaintiff's readmission to school pending appeal. On the merits, we have concluded that the due process clause of the 14th Amendment and of article 1, section 7 of the California Constitution 6 guarantees to a student faced with expulsion from a public high school for misconduct the opportunity to confront and cross-examine adverse witnesses unless the hearing officer or panel specifically finds that the granting of such a right would expose witnesses to risk of injury. We have further determined that plaintiff was denied the right of confrontation and cross-examination and that his expulsion should, therefore, be annulled.

I

The district makes the threshold contention that plaintiff's readmission to school has rendered this appeal moot. We disagree. The general rule governing mootness is that when an event occurs pending appeal which renders it impossible for the reviewing court to grant appellant any effectual relief should it decide in his or her favor, the appeal should be dismissed for mootness. (Eye Dog Foundation v. State Board of Guide Dogs for the Blind, 67 Cal.2d 536, 542, 63 Cal.Rptr. 21, 432 P.2d 717; Paul v. Milk Depots, Inc., 62 Cal.2d 129, 132, 41 Cal.Rptr. 468, 396 P.2d 924; Consol. etc. Corp. v. United A. etc. Workers, 27 Cal.2d 859, 863, 167 P.2d 725.) In the case at bench, plaintiff's mandate petition sought annulment of the expulsion order and reinstatement. If we should decide that the expulsion was invalid for failure to respect plaintiff's due process rights, we may grant part of the relief sought notwithstanding plaintiff's readmission by reversing with directions to issue a peremptory writ of mandate commanding the school to expunge the expulsion order. The appeal is, therefore, not moot. 7

Moreover, even had readmission rendered this appeal otherwise moot, this case comes...

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1 books & journal articles
  • The Process-Based Approach to Cross-Examination in Administrative Proceedings.
    • United States
    • Suffolk University Law Review Vol. 55 No. 1, January 2022
    • January 1, 2022
    ...(prescribing rules for subpoenas in state administrative proceedings). (87.) See Aguirre v. San Bernardino City Unified Sch. Dist., 170 Cal. Rptr. 206, 215 (Ct. App. 1980) (stating absence of subpoena power cannot excuse denial of rights to confrontation and cross-examination), vacated, 654......

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