Gordon J. v. Santa Ana Unified Scool. Dist.

• Decision Date: 10 December 1984
• Citation: 208 Cal.Rptr. 657,162 Cal.App.3d 530
• Court: California Court of Appeals Court of Appeals
• Parties: , 21 Ed. Law Rep. 598 GORDON J., Jr., a Minor, etc., and Gordon J., Sr., Appellants, v. SANTA ANA UNIFIED SCHOOL DISTRICT, Orange County Board of Education, and Santa Ana Board of Education, Respondents. G000283. Civ. 30652.

Page 657

208 Cal.Rptr. 657

162 Cal.App.3d 530, 21 Ed. Law Rep. 598

GORDON J., Jr., a Minor, etc., and Gordon J., Sr., Appellants, v. SANTA ANA UNIFIED SCHOOL DISTRICT, Orange County Board of Education, and Santa Ana Board of Education, Respondents.

G000283.

Civ. 30652.

Court of Appeal, Fourth District, Division 3, California.

Dec. 10, 1984.

Hearing Denied Feb. 27, 1985.

[162 Cal.App.3d 531] Robert Salisbury for appellants.

Ronald D. Wenkart, Santa Ana, and James P. Aynes, Orange, for respondents Santa Ana Unified School Dist. and Santa Ana Bd. of Educ.

Maurer, Higginbotham & Harris and O. Brandt Caudill, Jr., San Francisco, for respondent Orange County Bd. of Educ.

OPINION

CROSBY, Associate Justice.

Is the exclusionary rule applicable in high school disciplinary proceedings? No.

I

After a hearing before the school board, Gordon J., Jr. was suspended for a year by the Santa Ana Unified School District for possession of marijuana on the campus of Saddleback High School in late 1982. His appeal to the Orange County Board of Education was denied, as was his petition for writ of mandate in the superior court. This appeal followed.

Gordon was told to turn out his pockets by the vice principal based on little more than a generalized suspicion evolved from stale information, previous misbehavior, and the student's unusually heavy use of a public telephone. The marijuana was found in the one pocket he omitted to empty, and Gordon was then turned over to a police officer assigned to the school.

Although a manual supplied to students in the district states campus searches will only be undertaken on probable cause, the record before us does not justify this search on that standard, at least as it might be applied to a warrantless search by a police officer. Nevertheless, even assuming a search by a school vice principal responsible for discipline is equivalent to a police search, for reasons which follow, we find application of the exclusionary rule inappropriate in this type of proceeding.

II

Initially, the school district suggests the appeal is moot and moves to dismiss. Gordon, we are told, has completed the suspension, is now eligible to return to Saddleback, and has suffered no actual interruption of his academic career because he was permitted to attend a high school in another district all along. Counsel for the minor claims the question is of public importance, likely to recur, and should be resolved in this proceeding since virtually any appeal of a school suspension will be mooted by the time it can be decided.

At oral argument we questioned whether transcripts provided to colleges would contain a record of Gordon's suspension, thus providing a continuing liberty interest in the outcome of the appeal. (See, e.g., Board of Regents v. Roth (1972) 408 U.S. 564, 573, 92 S.Ct. 2701, 2707, 33 L.Ed.2d 548.) In a supplemental brief, the superintendent of schools declares that disciplinary records are only forwarded to other secondary schools to which a student might transfer and are routinely destroyed three years after a student leaves the district.

Nonetheless, we have determined to resolve the question on the merits and consequently deny the motion to dismiss. The superintendent's belated assurances do not completely eliminate the possibility of future impact from the disciplinary record. It has apparently been transmitted to a school in a different district, but we are not provided with that district's policy concerning confidentiality of disciplinary records in its files. (See, e.g., Gins berg v. New York (1968) 390 U.S. 629, 633, fn. 2, 88 S.Ct. 1274, 1277, fn. 2, 20 L.Ed.2d 195.) Additionally, the record could conceivably affect enrollment in another secondary school should Gordon's family choose to relocate.

Moreover, the specific question presented, the role of the exclusionary rule in high school disciplinary proceedings, if any, does appear to be of first impression in this state. As the Supreme Court said in passing on a similar mootness contention in an appeal arising from a high school disciplinary proceeding, "The district preliminarily urges that plaintiff's readmission to school has rendered this appeal moot. Even if that were so, this case comes within the well-recognized qualification to the general rule that where, as here, the appeal presents questions of continuing public interest that are likely to recur, resolution of those issues is appropriate. [Citations.] What process is due a student facing expulsion from a public school is a matter of continuing importance to children in the public school system, school boards, and school administrators." (John A. v. San Bernardino City Unified School Dist. (1982) 33 Cal.3d 301, 307, 187 Cal.Rptr. 472, 654 P.2d 242.)

III

In view of the sparse authority arising from high school disciplinary cases involving the Fourth Amendment, we begin by examining the history of the exclusionary rule in criminal and juvenile prosecutions arising from campus searches. A warrantless search of a student's locker based on ample probable cause was upheld in the case of In re Donaldson (1969) 269 Cal.App.2d 509, 75 Cal.Rptr. 220, because the court found "the vice principal of the high school not to be a governmental official within the meaning of the Fourth Amendment so as to bring into play its prohibition against unreasonable searches and seizures. Such school official is one of the school authorities with an obligation to maintain discipline in the interest of a proper and orderly school operation, and the primary purpose of the school official's search was not to obtain convictions, but to secure evidence of student misconduct. That evidence of crime is uncovered and prosecution results therefrom should not of itself make the search and seizure unreasonable." (Id., at pp. 511-512, 75 Cal.Rptr. 220; see also People v. Stewart (1970) 63 Misc.2d 601, 313 N.Y.S.2d 253, 256-257 and cases cited.)

After deciding that public school officials are merely private citizens when they search students suspected of criminal activity, the court proceeded to support its holding on the alternative and sharply contradictory ground that these same private citizens simultaneously act as agents of the state in its role as surrogate parent: "The school stands in loco parentis and shares, in matters of school discipline, the parent's right to use moderate force to obtain obedience .... " (Id., 269 Cal.App.2d at p. 513, 75 Cal.Rptr. 220.) ¹

Donaldson's private citizen rationale has been roundly criticized: "The court's theory is quite inscrutable. A vice-principal of a high school obviously exercises the power of the state when he performs the duties assigned to him. Although it is possible for any government employee to act privately, the facts reported in the case completely belie any notion that the challenged search was undertaken by the vice-principal in his individual capacity. In fact, most of the court's opinion is devoted to various justifications of the vice-principal's action because he was acting in his official capacity: sharing the authority of the master key to all student lockers, insuring the protection of all students, preserving the law-and-order atmosphere necessary for the educational process, and partaking of the school's in loco parentis power." (Buss, The Fourth Amendment and Searches of Students in Public Schools (1974) 59 Iowa L.Rev. 739, 766, fns. omitted.) The private citizen theory has also been repeatedly rejected in other jurisdictions. (See, e.g., Horton v. Goose Creek Independent School District (5th Cir.1982) 690 F.2d 470, 480 and cases cited.)

Donaldson was followed by In re Thomas G. (1970) 11 Cal.App.3d 1193, 90 Cal.Rptr. 361, where a high school dean of students, with good reason to believe a minor was in possession of dangerous drugs and narcotics and intended to use them, required him to turn out his pockets. One of the items found was a film canister containing amphetamine pills. The court upheld the search on three grounds: (1) The dean's source was analogous "to a citizen-informer reporting a crime to the police" (id., at p. 1196, 90 Cal.Rptr. 361); (2) "school authorities 'may impose more stringent regulations upon the constitutional rights of minors than upon those of adults' " (id., at p. 1198, 90 Cal.Rptr. 361, quoting Myers v. Arcata etc. School Dist. (1969) 269 Cal.App.2d 549, 558, 75 Cal.Rptr. 68); and (3) Donaldson's private citizen theory (id., 269 Cal.App.2d at pp. 1198-1199, 75 Cal.Rptr. 220). The first reason, the reliable tip, combined with the exigent circumstance that the suspected student was expected to consume all or part of the contraband, was probably sufficient justification for a warrantless search under standards applicable to police officers. There was little need to say more. (In re Guillermo M. (1982) 130 Cal.App.3d 642, 647, 181 Cal.Rptr. 856.)

In re Fred C. (1972) 26 Cal.App.3d 320, 102 Cal.Rptr. 682 extends the private citizen theory "to a point of ultimate absurdity ...." (Buss, supra, 59 Iowa L.Rev. at p. 767.) There, two vice principals confronted a minor who had been expelled from class. They had determined to interview and search him based on information of unproven reliability that the boy had been selling dangerous drugs on campus that morning. When he refused an order to turn out his pockets, they called in a police officer who obtained a "consent" to search after telling the minor he would be searched anyway. Fred's bulging pockets yielded marijuana and dangerous drugs packaged for sale.

It is difficult to disagree with Professor Buss' evaluation of the Fred C. opinion: "The [Court of Appeal] indicated that the police officer was not acting in a police capacity but was acting as the agent of the vice-principals who were--of course--characterized as acting in their private capacity although they were obviously acting within the permissible scope of their duties. That sort of turning reality...