Perlman v. Shasta Joint Jr. College Dist. Bd. of Trustees

• Decision Date: 22 July 1970
• Citation: 88 Cal.Rptr. 563,9 Cal.App.3d 873
• Court: California Court of Appeals Court of Appeals
• Parties: Richard PERLMAN, Petitioner and Respondent, v. SHASTA JOINT JUNIOR COLLEGE DISTRICT BOARD OF TRUSTEES, Gilbert Collyer, Loren D. Phillips and William Meardy, Respondents and Appellants. Civ. 12231.

Page 563

88 Cal.Rptr. 563

9 Cal.App.3d 873

Richard PERLMAN, Petitioner and Respondent, v. SHASTA JOINT JUNIOR COLLEGE DISTRICT BOARD OF TRUSTEES, Gilbert Collyer, Loren D. Phillips and William Meardy, Respondents and Appellants.

Civ. 12231.

Court of Appeal, Third District, California.

July 22, 1970.

Hearing Denied Sept. 24, 1970.

Leep & Saunders, and John D. Barr, Redding, for petitioner and respondent.

Charles C. Marson, American Civil Liberty Union, San Francisco, amicus curiae.

Robert A. Rehberg, County Counsel, Redding, for respondents and appellants.

BRAY, Associate Justice (Assigned).

Appellants Shasta Joint Junior College District Board of Trustees, Gilbert Collyer, Loren D. Phillips and William Meardy appeal from a superior court judgment ordering appellants to set aside the expulsion of respondent Richard Perlman from Shasta Joint Junior College and to strike from his school record all reference to the expulsion and to a prior suspension. ^{1, 2}

QUESTIONS PRESENTED

1. The validity of the proceeding of January 23, 1968, suspending Perlman and providing probation.

2. The validity of the proceedings of February 21, 1968, expelling Perlman.

RECORD

On February 23, 1968, Perlman filed in the Shasta County Superior court a petition for writ of mandate to review the College Board's proceedings at the suspension and expulsion hearings hereinafter discussed and to vacate Perlman's expulsion from Shasta College. A temporary restraining order was issued staying the operation of the expulsion order pending the hearing of the petition. After a hearing the court found that the proceedings at both the suspension and expulsion hearings were not conducted as required by law, that Perlman was not given adequate notice of either hearing and that findings of fact were required at both hearings but were not made, that Perlman was not afforded a fair hearing at either proceeding, that the College Board was biased and prejudiced and prior to the expulsion hearing had reached a decision on the merits. The court then ordered that the orders of suspension and expulsion be set aside, that the College Board strike from Perlman's student record any references to the suspension and expulsion, and that, if necessary, further proceedings be had in conformity with the court's order.

The Suspension Proceeding

Perlman was a student in good standing at Shasta College. William Meardy was the dean of students. Perlman apparently had some position on the student body association having to do with exhibiting moving pictures and selling tickets therefor. Perlman told the dean that he was planning to invite a group of socialists to the campus and was informed by the dean that he was required by the College Board's procedures and policies handbook before doing so to go to the dean's office and fill out some forms. Perlman obtained a copy of the book and informed the dean that he was right about the requirement but that he might or might not follow the requirements. Apparently Perlman had the consent of the president and vice president of the college to invite the other students. The college regulations required that the approval of the superintendent or vice president be obtained for nonstudents coming to the campus for 'advertising.' They did not require the approval of the dean. Apparently Perlman had given the president the impression that he had received the dean's consent. Later Perlman came to the dean and told him the 'socialists' had arrived. It would appear that they were distributing some kind of literature on the campus. The dean then informed Perlman that as he had not gone through proper channels Perlman should invite the students to leave and Perlman then to proceed 'through channels.' Perlman refused. Thereupon the dean notified Perlman that having violated his instructions he should appear one hour later at the president's office. It seems that the handbook made it an offense to violate the instructions of a credentialed person.

At the appointed hour Perlman met with the college president, the vice president, the dean of men and Dean Meardy. The latter informed the group of Perlman's failure to get his permission to invite the students. Perlman did not deny Meardy's version of their encounters. Whether Perlman attempted any defense does not appear. Apparently he did not ask for a further hearing nor offer to produce witnesses.

Thereupon Perlman was suspended from the college for three days. However, he was allowed to take an examination which fell during that time. He was also placed on disciplinary probation to commence at the beginning of the new term, February 13, and to continue until the end of the semester. This meant that he was not to participate in any college activities, attend any functions or hold any office but could go to classes and take examinations.

Shortly thereafter a letter was sent Perlman telling of his conviction of violating the dean's instructions and the penalty decided therefor. Later the terms of probation were modified as being too restrictive. Under the modification he was allowed to continue to attend functions but could not maintain his position as ticket taker or ticker seller and movie chairman.

The dean stated that he read to Perlman from his notes the specific terms of the probation and emphasized that he was removed from handling money or holding any important position within the student body.

On February 7 Perlman told the dean that without authorization he had taken books from the lost and found room, sold them for $32 and kept the money. The dean then told him to come to the president's office for another meeting. Perlman refused to come 'on advice of counsel' because his counsel was not available. Perlman was given a written memorandum of the terms, dated February 15. He violated the terms the same night by showing the movie and collecting some $16.50. The dean told him he was violating the probation terms.

On February 15 a letter from the dean to Perlman was given him, headed 'SUBJECT: Recommendation to the Board Regarding Suspension or Expulsion.' This advised him that a special meeting of the College Board would be held February 21 'for the purpose of considering a recommendation to suspend or expel you from college.

'The charges are as follows:

'On Wednesday February 14, 1968 you did knowingly willfully and purposely violate the provisions of the strict disciplinary Probation status upon which you were placed as per our letter to you dated February 14, 1968 (copy enclosed). You accomplished this by maintaining your position as movie committee chairman and chairman of the ticket sellers and ticket takers committee.' The letter then stated that this violation occurred on the night of February 14 and pointed out that the strict disciplinary probation letter specifically prevents Perlman from holding "any other responsible club or organization positions," and that he was forbidden from holding any job sponsored by the college or student body "which includes the taking or handling in any way of college or student body money." That on the night of February 14 Perlman supervised, collected and deposited with the college business office $16.50 in ticket sales money. Also "you are charged with continued willful disobedience, open and persistent defiance of the authority of the school personnel and continued abuse of school personnel, as evidenced by your conduct including, but not limited to, the following:" refusal to come to a 2 p.m. meeting on February 13 in the president's office after Meardy had expressly directed him to come; Perlman's admission of having taken books from the college lost and found room and selling them for approximately $32.

The letter then stated that Perlman had the right to be represented by counsel at the board meeting, could request that the meeting be open to the public and could bring witnesses to testify in his behalf.

The Suspension Order

The contention that the proceedings of January 23 violated the elementary principles of due process of law is based upon the claim, as found by the court, that notice of the hearing must be given in writing, setting forth the charges against Perlman and advising him of a right to counsel and to call witnesses in his own behalf, and secondly, that written findings of fact should have been made by the disciplinary body. This contention raises the question of whether for a minor infraction of college requirements, such as refusal of a student to follow the instructions of a credentialed person, a formal written notice setting forth charges must be given him before he may be disciplined for such an infraction. It must be remembered that the only charge against Perlman before the disciplinary group was that he refused to follow Dr. Meardy's instruction to apply to him for permission to invite the socialist students, the rules of the college providing that such refusal is an offense. Primarily the authorities hold that in any college disciplinary proceeding the student is entitled to a 'fair hearing.' As will hereinafter appear, such proceedings are not required to provide the type of due process required in criminal court proceedings. (Goldberg v. Regents of University of California (1967) 248 Cal.App.2d 867, 881, 57 Cal.Rptr. 463.)

All parties cite Dixon v. Alabama State Board of Education (5 Cir., 1961) 294 F.2d 150, cert. denied 368 U.S. 930, 82 S.Ct. 368, 7 L.Ed.2d 193, as a leading case on the subject of procedural due process in college disciplinary proceedings. It deals primarily with expulsion of students not suspension or probation. For expulsion it requires compliance with: (1) a notice containing a statement of the specific charges and grounds which would justify expulsion, the names of the witnesses against the student and a statement of the gist of their proposed testimony; (2) a hearing whose scope and nature should vary according to the circumstances of the particular case. This...