John A. v. San Bernardino City Unified School Dist.

• Citation: 187 Cal.Rptr. 472,32 Cal.3d 875,654 P.2d 242
• Court: California Supreme Court
• Decision Date: 10 December 1982
• Parties: Previously published at 32 Cal.3d 875 32 Cal.3d 875, 33 Cal.3d 301, 654 P.2d 242, 7 Ed. Law Rep. 1059 JOHN A., a Minor, etc., Plaintiff and Appellant, v. SAN BERNARDINO CITY UNIFIED SCHOOL DISTRICT et al., Defendants and Respondents. L.A. 31391.

Page 472

187 Cal.Rptr. 472

Previously published at 32 Cal.3d 875

32 Cal.3d 875, 33 Cal.3d 301, 654 P.2d 242, 7 Ed. Law Rep. 1059

JOHN A., a Minor, etc., Plaintiff and Appellant, v. SAN BERNARDINO CITY UNIFIED SCHOOL DISTRICT et al., Defendants and Respondents.

L.A. 31391.

Supreme Court of California,

In Bank.

Dec. 10, 1982.

As Corrected Jan. 2, 1983.

Carlos L. Juarez, San Bernardino, Albert A. Duarte, Visalia, Cynthia Ludvigsen, Jeffrey L. Kastner, Van Neys, Ronald L. Taylor, Merced, Paul Henry Abram, Los Angeles, and Nathan L. Rosenberg, Sacramento, for plaintiff and appellant.

Bruce Saltzer, Kenyon F. Dobberteen, Mary Burdick, Los Angeles, and, Paul Weckstein, Cambridge, Mass., as amici curiae on behalf of plaintiff and appellant.

Ronald C. Ruud, Judith J. Clem and Atkinson, Andelson, Ruud & Romo, San Bernardino, for defendants and respondents.

John H. Larson, County Counsel, Roberta M. Fesler, Deputy County Counsel, Ron Apperson, Los Angeles, George Deukmejian, Atty. Gen., and Robert E. Murphy, Deputy Atty. Gen., as amici curiae on behalf of defendants and respondents.

BROUSSARD, Justice.

Plaintiff appeals from a judgment denying petition for writ of mandate to compel readmission to high school.

After a high school freshman football game, an altercation involving a number of the players erupted on the San Bernardino High School campus. No teachers, coaches or other school officials witnessed the incident. 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 obtained signed statements from eight students who were allegedly involved in the altercation, including plaintiff, then a fourteen-year-old freshman. Plaintiff was suspended from school for his alleged participation in the fight and notice of the suspension was sent to his mother.

The school principal recommended plaintiff be expelled, ¹ and the district superintendent's office informed plaintiff's mother by letter that a hearing had been scheduled on the question of plaintiff's expulsion for assaulting and injuring two students without provocation. The letter also 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

The three-member hearing panel was 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 at the hearing. 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 the signed statements. The chairperson then turned to plaintiff and asked: "What exactly happened that day after the football game?" After a one-sentence answer, plaintiff was thereafter questioned by panel members concerning the incident, his attendance record and an incident in which he was reported to have hit another student in class.

Neither the two injured boys nor any of the other witnesses to the fracas testified, and there was no showing that they were unwilling to testify or that by testifying they would subject themselves to a substantial risk of harm.

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. The two boys and several other witnesses said that plaintiff and several others chased the injured boys and caught them, and plaintiff and another boy started hitting the two injured boys. Other students broke up the fight, and the police were called.

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 the 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 six and one-half months); it also recommended that he be readmitted earlier "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 mandamus claiming 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. The declarations were to the effect that it was essential to the safety and welfare of students 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. The administrators recited instances where there had been threats of retaliation and retaliation against student witnesses by accused students and their friends and where witnesses changed schools to avoid harassment. 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 contends that he had a right to confront and cross-examine the witnesses to the altercation and that deprivation of that right rendered his expulsion invalid. We conclude that under the relevant statutory provisions it was improper to expel plaintiff without the testimony of any of the witnesses to the altercation. Accordingly, we find it unnecessary to address plaintiff's claim he was deprived of the right of confrontation and cross-examination in violation of the due process clauses of the federal and state Constitutions.

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. (Marin County Bd. of Realtors, Inc. v. Palsson (1976) 16 Cal.3d 920, 929, 130 Cal.Rptr. 1, 549 P.2d 833; Green v. Layton (1975) 14 Cal.3d 922, 925, 123 Cal.Rptr. 97, 538 P.2d 225; Eye Dog Foundation v. State Bd. of Guide Dogs for the Blind (1967) 67 Cal.2d 536, 542, 63 Cal.Rptr. 21, 432 P.2d 717.) 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.

The power to expel for misconduct is not placed in the school's administrative officials but in the governing board. The principal recommends expulsion (§ 48904.5), and thereafter a hearing is held by the board, a hearing officer or an impartial administrative panel of district employees. If a hearing officer or administrative panel hears the matter, findings of fact must be made, and the officer or panel makes recommendations to the board. (§ 48914.)

Section 48914, subdivision (b) provides for confrontation and cross-examination of witnesses "who testify at the hearing." Subdivision (f) of the section provides: "Technical rules of evidence shall not apply to such hearing, but evidence may be admitted and given probative effect only if it is the kind of evidence upon which reasonable persons are accustomed to rely in the conduct of serious affairs. A decision of the governing board to expel must be supported by a preponderance of the evidence."

The requirement that the board's decision to expel be supported by a preponderance of the evidence establishes that the burden is on the school district to establish cause for expulsion. The requirement of subdivision (f)...