Collins v. Thurmond, F075781

CourtCalifornia Court of Appeals
Citation252 Cal.Rptr.3d 188,39 Cal.App.5th 323
Decision Date27 August 2019
Parties Keschel COLLINS et al., Plaintiffs and Appellants, v. Tony THURMOND, as Superintendent, etc., et al., Defendants and Respondents.
Docket NumberF075781

252 Cal.Rptr.3d 188
39 Cal.App.5th 323

Keschel COLLINS et al., Plaintiffs and Appellants,
Tony THURMOND, as Superintendent, etc., et al., Defendants and Respondents.


Court of Appeal, Fifth District, California.

Filed August 27, 2019
As Modified August 29, 2019




The present case arises from information released to the public regarding suspensions, transfers, and other disciplinary proceedings in the Kern High School District of Kern County (KHSD). The data released allegedly demonstrates that racial bias has affected how KHSD disciplines minority students, and actions taken by KHSD allegedly demonstrate that KHSD actively attempted to hide this fact from the public.

Appellants in this case are a collection of parents, students, taxpayers, and community organizations. They sued a number of defendants, including both local- and state-level entities and individuals.1 Appellants' claims against the local-level defendants were narrowed and allowed to proceed in the trial court, while all claims brought against the state-level defendants were

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dismissed with prejudice following various demurrers. In this appeal, appellants challenge the dismissal of several of the claims brought against the state-level defendants.

In the following opinion, we affirm the dismissal of most of appellants' claims against the state-level defendants, either because such claims do not state a cause of action or because such claims may be brought against the local-level defendants but not the state-level defendants. We ultimately find, however, that appellants have stated a cause of action under the equal protection clause of the California Constitution and they have properly petitioned for a writ of mandate based on the state-level defendants' ministerial duty to monitor the practices of local school districts for violations of federal law. We therefore conclude the trial court wrongly sustained the state-level defendants' demurrer on those claims, along with appellants' request for declaratory relief on the same issues. In a related conclusion, we determine that appellants' complaint contains sufficient allegations to demonstrate associational standing for one of the community organizations to pursue these claims against the state-level defendants.


The information that prompted this case was first made available in the 2009 to 2010 timeframe, although appellants allege that the subject conduct occurring in Kern County began before that time and has continued to the present day. The general crux of appellants' complaint is that KHSD has adopted and implemented a district-wide disciplinary program that is biased toward minority students, students who speak limited English, and others similarly situated; KHSD and the state-level defendants became aware of this bias in or around 2009 and 2010; and rather than correct those biases, KHSD and the state-level defendants either willfully ignored the information or actively sought to hide their conduct from further public scrutiny.

In the second amended complaint (the complaint),2 appellants initially allege that "KHSD has developed and implemented written, verbal, formal and informal policies and practices regarding expulsion and referral for expulsion that are highly discretionary, and impose zero-tolerance standards that both violate express provisions of the California Education Code and result in the disproportionate suspension, expulsion and involuntary transfer of African-American and Latino students out of a general education setting and into alternative schools." Appellants further allege that certain students

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are marked in their files as problems and subjected to additional unwarranted scrutiny. Identifying certain racially charged statements allegedly made by teachers, appellants contend these actions create a racially hostile educational environment for minority students.

With respect to the underlying disciplinary procedures, appellants allege that KHSD has implemented a code that is highly subjective, both in what constitutes a violation (e.g., defiance toward employees, continual or habitual use of profanity, and hate violence) and how such violations should be punished (e.g., "`Students who fail to comply with these rules and regulations will be counseled, reprimanded, suspended or expelled and/or arrested as the laws are applied.'"). It is this subjective system that appellants allege provides the cover for discriminatory practices at KHSD.

The complaint then details the underlying disciplinary statistics that appellants allege support their position. These include claims that in 2010, "KHSD gained statewide notoriety for its number of expulsions and suspensions reported to the U.S. Department of Education...." This notoriety arose because, in 2009, KHSD reported 2,205 total expulsions, "the highest number of expulsions of any district in the state of California, including school districts with much larger enrollment." KHSD's rate of expulsion was 54.47 per 1,000 students, dwarfing both Kern County's rate of 14.87 per 1,000 students and the state average of 3.49 per 1,000 students. When broken down into broad racial categories, the rates in KHSD split further. "KHSD['s] average expulsion rate for White students was 18.70 per 1,000 students; the average for Latino students was 65.85 expulsions per 1,000 students ...; and the average for African-American students was 110.21 expulsions per 1,000 students...."

Following this disclosure and the publicity it brought, in 2010 KHSD reported a slightly lower total of 2,040 expulsions before reporting "no data on expulsions for the 2011-2012 school year, although required to do so by state law." "In 2013, the number of reported expulsions dropped to 256."

This reduction in expulsions, according to the complaint, occurred because KHSD implemented "a significant change in reporting practices and a change in [KHSD's] approach to discipline that resulted in students being transferred out of a general education setting and into an alternative school through the use of involuntary transfers, rather than through formal expulsion." Appellants also allege KHSD has "implemented a `waiver' system, under which students and parents are convinced through intimidation, coerced or tricked into waiving the due process protections accompanying formal discipline and accepting immediate placement in alternative schools."

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Appellants assert that, even with the reduction in expulsions, racial bias can be seen in the data. They note that in the 2012-2013 data, African-American students are still expelled at a rate of 24 per 1,000 students, compared to 7 per 1,000 students for Latinos, and 5 per 1,000 students for Whites. They also note that the types of behaviors resulting in expulsion are dramatically different depending on the race of the student. "While 58% of the White students ... were expelled for the more serious offenses of possession of drugs or weapons or inflicting injury on another, 51% of the Latinos and just 33% of African-Americans were expelled for these reasons. Put another way, 67% of expelled African-American students were expelled for offenses that did not include physical injury or possession of drugs or weapons, while only 42% of expelled Whites were expelled for these less serious offenses."

Premised on the allegations that KHSD moved to suspensions and transfers over expulsions, appellants also allege that the racial disparities continued in the statistics regarding suspensions and alternative school placements. Thus, appellants allege that in 2013, KHSD's suspension rate was 16.3 percent of students, "or three times the state average." Further, the rates of suspension were again skewed. Rates of "38.61 per one hundred African-American students," "24.81 per one hundred Latino students," and "18.7 per one hundred White students" existed for suspensions that year. Moreover, "only 7.69 per one hundred White students were suspended for willful defiance" while "27.69 per one hundred African-American students and 13.08 per one hundred Latino students were suspended for willful defiance." In regard to what appellants assert are alternative school placements, they allege that minority students are disproportionately placed in those settings too. Thus, where KHSD "enrollment for [2013-2014] was 63% Latino, 6% African-American and 25% White," "enrollment in the alternative schools within [KHSD] was 79.65% Latino, and 7.29% African-American," with only 16.83 percent enrollment being White students.3

Having set forth the racial disparities underlying their claims, appellants detail allegations that alternative schools "are not intended to provide the full educational opportunity of a general education setting," thereby affecting the rights of minority students to obtain an education equal to their White counterparts. Appellants contend that "the relatively stable enrollment in alternative schools, with disproportionately greater percentages of Latinos

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and African-Americans, is due to the fact that KHSD is implementing the same policies and practices with respect to the involuntary transfer of students to these alternative schools as it did when assignments were the result of formal expulsion." They allege such practices "have not only been intentional, but also influenced by implicit and/or unconscious biases concerning African-American[s] and Latinos ... that exist in the United States, California, and Kern County today."

Appellants add further allegations that KHSD's policies are harmful to minority students, that specific plaintiffs in the litigation have been harmed by these policies, that employees in KHSD have "implemented policies and practices that incorporate negative stereotypes about African-Americans and Latinos," and that students placed in alternative schools receive a reduced...

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