Judge Mary H. Strobel, Case 20STCP04241 2022-09-06 Tentative Ruling

Hon. Mary H. Strobel

The clerk for Department 82 may be reached at (213) 893-0530.

Petitioners John Doe 1 (“Doe 1”) and his son John Doe 2 (“Doe 2”; collectively “Petitioners”) petition for a writ of mandate directing Respondents Arcadia Unified School District (“District”) and David Vannasdall (collectively, “Respondents”) to set aside a five-day suspension imposed on Doe 2 on August 22, 2019, when he was an eight-year-old third-grader, for committing or attempting to commit “robbery or extortion” in violation of Education Code section 48900(e). Petitioners also petition for a writ of mandate directing Respondents to set aside the decision of the District’s Board of Education (“Board”) denying Doe 1’s request pursuant to Education Code section 49070 to correct or remove information regarding the suspension from Doe 2’s educational records.

In August 2019, Doe 2 was eight years old and a soon-to-be third-grader at Baldwin Stocker Elementary School in the Arcadia Unified School District. (AR 44; Opening Brief (“OB”) 5.)

On or about August 8, 2019, while the school district was still on summer break, it “was reported” to Baldwin Stocker principal Kelsey Brown that Doe 2 had taken or extorted a fellow classmate’s money during the previous school year, when Doe 2 was in the second grade. (AR 44.)

When school resumed for the 2019-2020 academic year, Brown conducted an investigation into the allegation by interviewing Student 1 (the alleged victim), four classmates who witnessed the money changing hands (“Student 2,” “Student 3,” “Student 4,” and “Student 5”), and Doe 2. (AR 36-43.)

Principal Brown interviewed Doe 2 on August 22, 2019. (AR 36.) An Officer Li of the Arcadia Police Department also attended the interview. (AR 25, 47-49; Oppo. 9.) According to the interview transcript, Brown asked Doe 2 “who he took money from”; “how much money did you take”; and “why did you take the money?” Doe 2 replied that he took the money from Student 1. At first he forgot the amount of money, but later stated “2 or 3 one hundred dollar bills.” As a reason, Doe 2 stated “he’s my friend, not really sure.” Brown asked Doe 2 “where the money was?,” to which Doe 2 stated that some was at home “in a small blue box on a table in his bedroom” and that he had spent $20 or $50 on lunch at Burger King. Brown asked Doe 2 what he “told Student 1 would happen if he did not give him the money he asked for?” Doe 2 reported that “he told Student 1 he would no longer be in the group if he did not give him the money.” Doe 2 also claimed that his parents were aware that he took the money and that they told him to write a note saying he was sorry to Student 1’s parents. (AR 36.)

In a handwritten note, Student 1 claimed that Doe 2 “like in a way forced me to give him money” and had threatened to “bann [sic]” Student 1 from their friend group if Student 1 did not comply. Student 1 reported that Doe 2 told him “if you talk to my friends … he’s going do something bad to me.” Student 1 also said that “sometimes” Doe 2 “almost punched me in the face” and was “super angry.” (AR 37.) Student 1 reported that he “had to give [Doe 2] 800 dollars … at different times and amounts” when they were in second grade. (AR 37-38.) Student 1 reported in his handwritten note that Students 2, 3, 4, and 5 witnessed the incident. (Ibid.)

The handwritten reports of Students 2-5 are not consistent in all details. However, on the whole, these reports corroborate that Student 1 gave Doe 2 significant sums of money (up to $800) when they were in second grade and Doe 2 used some of the money at Burger King. (OB 6; AR 39-43.) Student 3 reported that Doe 2 is the “leader” of the group of friends; Student 1 gave Doe 2 “800$ including some tens and ones”; and Student 1 gave Doe 2 the money “because he liked” Doe 2. (AR 40.)

Student 5 stated that Doe 2 had wanted to purchase books at one of two school book fairs months earlier in 2018, but Doe 2’s parents did not permit Doe 2 to carry money to school. (AR 41.) According to Student 5, Doe 2 had been upset and had “yelled at” Student 1 and another student, Student 6, to demand that Student 1 and/or Student 6 use their money to purchase Doe 2 items at the book fair. (AR 41.) Student 5 reported that Doe 2 had said “he was going to punch them” if they did not buy him books. (AR 41.) Student 5 alleged that Student 1 complied and bought Doe 2 “3 books, 1 bookmark, and a toy.” (AR 42.) Student 6 was not interviewed.

After interviewing Doe 1 on August 22, 2019, Principal Brown met with Doe 2’s father (“John Doe 1” or “Mr. Doe”) and John Doe 2’s mother (“Mrs. Doe”). The parents were informed that their child would be given a five-day suspension from August 22, 2019, through August 28, 2019. (AR 44.)

In a letter dated August 22, 2019, Principal Brown wrote, in part, that the suspension was for violation of “Education Code 48900(e) – Committed or attempted to commit robbery.” She also wrote that it was reported to Brown that Doe 2 “had extorted money from a fellow classmate” and that Doe 2 “admitted to extorting over $500 from his classmate, over the course of the 2018-2019 school year.” (AR 44.) The letter stated that the suspension would be effective August 22, 2019, to August 28, 2019. The letter stated that a second disciplinary meeting was scheduled for August 27, 2019, at 9:30 am. (Ibid.)

It is somewhat unclear from the suspension letter whether Principal Brown had already decided to impose the five-day suspension when she met with Doe 2’s parents. The letter “confirm[s]” a conversation held on August 22, 2019, with Doe 2’s parents “regarding the school suspension of John Doe 2 for the violation of” section 48900(e). (AR 44 [bold italics added].) The court interprets the letter to mean that Principal Brown had already decided to impose “the suspension” when she met with Doe 2’s parents. However, the court would reach the same result in this writ action even if the meeting with Doe 2’s parents preceded the decision to impose the suspension.

District and Doe 2’s Parents Do Not Agree on Second Meeting Date; and Doe 2 Serves Suspension

After the meeting on August 22, Doe 1 sent Principal Brown a fax, objecting to the decision to suspend his son, disputing the amount of money allegedly taken, and objecting to the presence of Officer Li from the Arcadia Police during the interview of John Doe 2. (AR 47-49.) Among other things, Doe 1 acknowledged several “transactions” in which Doe 2 received money from a classmate and that some of the money was used to buy food at Burger King. (Ibid.)

In his August 22 letter, Doe 1 further indicated that he was unable to attend the follow-up meeting on August 27, 2019, as he would be out of the country and did not believe his wife, Mrs. Doe, was capable of handling the meeting. (AR 48.)

Doe 1 made arrangements to return early from his trip and brought his attorney to the August 27, 2019 meeting. (Yeomans Decl. Exh. 1, 2, & 3.) The District official at the meeting, Jim Anderson, was uncomfortable meeting with Petitioners’ attorney unless the District’s attorneys could also attend. Mr. Anderson offered to meet with the parents without their attorneys but this offer was refused and the meeting did not take place. Mr. Anderson rescheduled the meeting for the following day and again offered to meet with Mr. and Mrs. Doe without attorneys. (Ibid.; see also AR 19-22.) Mr. and Mrs. Doe refused and the meeting was held in their absence on August 28, 2019. (AR 45.) Following this meeting, Mr. and Mrs. Doe were sent a letter informing them that no further disciplinary action was being considered and inviting John Doe 2 to return to school on August 29, 2019. (Ibid.)

John Doe 2 returned to school on August 29, 2019, after serving his 5-day suspension. (AR 45 and Yeomans Decl. Exh. 3.)

Doe 2’s parents were subsequently informed that there was no administrative appeal available for the decision to suspend Doe 1, but that there is a procedure in Education Code section 49070 for parents to challenge the content of a student record. (See AR 52-55.)

The Does initiated the process to seek to correct or remove information about the suspension of John Doe 2 from his school records pursuant to Education Code section 49070. The Does met with District officials on or about July 23, 2020, after which the District’s Superintendent denied the Doe’s allegations and their request to remove or correct information concerning the suspension of John Doe 2 from his student records. (AR 53.)

The Does appealed the Superintendent’s determination to the District’s Board of Education. (AR 56.) The Board did not hear the appeal directly and, instead, convened an independent panel to hear the appeal. (AR 1.) On October 2, 2020, the independent hearing panel convened by the Board heard the Does’ appeal. (AR 1-57.) The independent panel subsequently issued findings recommending the denial of the Does’ appeal. (Yeomans Decl. Exh. 6.) On October 27, 2020, the Board met in closed session and voted unanimously to deny the Does’ allegations and appeal. (Yeomans Decl. Exh. 7; James Decl. Exh. A.)

On December 28, 2020, Petitioners filed a petition for writ of mandate pursuant to CCP section 1094.5, or in the alternative, CCP section 1085.

On May 24, 2021, Respondents filed their demurrer to the petition and meet and confer declaration. The court received Petitioners’ opposition and Respondents’ reply.

On July 8, 2022, Petitioners filed their opening brief in support of the petition and the declarations of Doe 1 and Becky James. On August 5, 2022, Respondents filed their opposition brief and the declaration of Keith Yeomans. On August 22, 2022, Petitioners filed a reply. The court has also received the 57-page administrative record lodged by the parties.

Petitioners’ Opening Brief exceeds the applicable page limits by two pages and the Petitioner’s reply brief exceeds applicable page limits by four pages. Petitioners did not seek leave of court to file oversized briefs. Petitioners are admonished to follow the California Rules of Court and the local rules regarding page limitations. The court exercises its discretion to consider the oversized briefs.

Petitioners contend that both the petition seeking to overturn Doe 2’s suspension, and also the petition seeking to remove the suspension from Doe 2’s educational records, are governed by CCP section 1094.5 and not section 1085. (OB 9-12.) Respondents, in contrast, contend that no evidentiary hearing was required by law for either of the District’s decisions at issue and, therefore, the petition is entirely governed by section 1085. (Oppo. 11-13.)

“[J]udicial review via administrative mandate is available ‘only if the decision[] resulted from a 'proceeding in which by law: 1) a hearing is required to be given, 2) evidence is required to be taken, and 3) discretion in the determination of facts is vested in the agency.’ Thus, ordinary mandate is used to review adjudicatory actions or decisions when the agency was not required to hold an evidentiary hearing.” (Bunnett v. Regents of University of California (1995) 35 Cal.App.4th 843, 848; see CCP section 1094.5(a).)

Statutory Law and Due Process Principles as Applied to Elementary School Suspensions

Petitioners contend, in part, that the petition is governed by CCP section 1094.5 because due process principles entitled Doe 2 to an evidentiary hearing. (OB 9-13.)

“‘The protections of procedural due process apply to administrative proceedings; the question is simply what process is due in a given circumstance.’ (Nightlife Partners, Ltd. v. City of Beverly Hills (2003) 108 Cal.App.4th 81, 90, 133 Cal.Rptr.2d 234.) Thus, due process is a flexible concept that requires protections appropriate to the particular situation.” (Rondon v. Alcoholic Beverage Control Appeals Bd. (2007) 151 Cal.App.4th 1274, 1284; see generally Mathews v. Eldridge (1976) 424 U.S. 319, 332-334.) “[A]t a minimum [due process] require[s] that deprivation of life, liberty or property by adjudication be preceded by notice and opportunity for hearing appropriate to the nature of the case.” (Goss v. Lopez (1975) 419 U.S. 565, 579, citing Mullane v. Central Hanover Trust Co. (1950) 339 U.S. 306, 313.)

As relevant to the charges made against Doe 2, the Education Code provides that “[a] pupil shall not be suspended from school … unless the superintendent of the school district or the principal of the school in which the pupil is enrolled determines that the pupil has committed an act as defined pursuant to any of subdivisions (a) to (r), inclusive: … (e) Committed or attempted to commit robbery or extortion.”

When a principal suspends a student, the Education Code requires “an informal conference conducted by the principal, [or] the principal’s designee” during which “the pupil shall be informed of the reason for the disciplinary action…and the evidence against him or her, and shall be given the opportunity to present his or her version and evidence in his or her defense.” (Educ. Code § 48911(b) [bold italics added].) “[W]henever practicable, the teacher, supervisor, or school employee who referred the pupil to the principal, the principal's designee, or the district superintendent of schools” should attend the informal conference. (Ibid.)

In Goss v. Lopez (1975) 419 U.S. 565, the U.S. Supreme Court held that students facing temporary suspension from a public school are entitled to due process protections. The Court held that “[s]tudents facing temporary suspension have interests qualifying for protection of the Due Process Clause, and due process requires, in connection with a suspension of 10 days or less, that the student be given oral or written notice of the charges against him and, if he denies them, an explanation of the evidence the authorities have and an opportunity to present his side of the story.” (Id. at 581.) The Court stated: “We stop short of construing the Due Process Clause to require, countrywide, that hearings in connection with short suspensions must afford the student the opportunity to secure counsel, to confront and cross-examine witnesses supporting the charge, or to call his own witnesses to verify his version of the incident.” (Id. at 583.) However, the Court did not “put aside the possibility that in unusual situations, although involving only a short suspension, something more than the rudimentary procedures will be required.” (Id. at 584.)

No Evidentiary Hearing Required for Doe 2’s Suspension; Petition is Governed by Section 1085

As Petitioners concede, “California Education Code § 48911 does not specifically provide for a hearing in this situation.” (Reply 8.) While there was no statutory requirement of a hearing before Doe 2’s suspension, Petitioners contend that Doe 2 was entitled to an evidentiary hearing pursuant to principles of constitutional due process set forth in Goss v. Lopez (1975) 419 U.S. 565. (OB 10-11.) The court disagrees.

While the five-day suspension involved a serious finding against Doe 2, a third-grader, the suspension was relatively short and well below the 10-day threshold for a more formal hearing identified in Goss. Petitioners cite insufficient evidence of lasting reputational, educational, or psychological consequences to Doe 2 from the five-day suspension that might justify an evidentiary hearing. (See OB 13, citing Doe 1 Decl. ¶¶ 4, 9, 11, 13; see also Reply 9-10.) Doe 1 declares that “Doe 2 was frightened, confused, and humiliated by the suspension,” but that is a likely response of a third-grade student to any school discipline. (Doe 1 Decl. ¶ 9.) Doe 1 refers to a “short term” impact on Doe 2’s grades and behavior, and he states on information and belief that Doe 2’s academic reputation has been “stained.” (Id. ¶ 13.) Doe 1 does not cite the information upon which he relies, and this evidence is too conclusory to show any significant long-term impact on Doe 2. Doe 2 was in elementary school and it seems unlikely that the five-day suspension would have a material, lasting impact on Doe 2’s future academic endeavors. The alleged financial and other impacts on Doe 1 and Mrs. Doe, including legal expenses, do not show that a fundamental vested right of Doe 2 was at issue. (Id. ¶¶ 11-12.) Furthermore, as discussed in Goss, there are countervailing interests and administrative burdens involved, which caution against imposing a hearing requirement on school districts for short student suspensions absent unusual circumstances. (Goss, supra, 419 U.S. at 583.) On the record presented, the evidence does not preponderate in support of a finding that due process required Respondents to give an evidentiary hearing prior to or after imposing the five-day suspension.

A published California decision supports this conclusion. Discussing Goss, the California Court of Appeal has stated that “[w]hen facing a temporary short-term suspension, a student has minimal procedural due process rights, including the right to a hearing.” (Granowitz v. Redlands Unified School Dist. (2003) 105 Cal.App.4th 349, 354-56.) The Court of Appeal further stated: “Before and after Goss, courts have consistently refused to impose stricter, adversarial, ‘trial-like procedures and proof’ on public school suspension proceedings. Instead, an informal meeting between the school official and a student or between the official and a student and his parents has been held to comport with due process.” (Id. at 355-56.)

While Granowitz involved a high school student, and while the facts are not identical to those here, the court disagrees with Petitioners’ contention that the case “is distinguishable … in all material respects.” (Reply 11.) The charges against the student in that case – essentially, sexual harassment in an educational setting – were also serious and, like robbery and extortion, had similarities to crimes under the Penal Code (e.g. sexual battery.) Like Doe 2, the student in Granowitz received a five-day suspension after an informal conference with the principal, and not an evidentiary hearing. Goss and Granowitz support the conclusion that an evidentiary hearing generally will not be required for a five-day student suspension. Significantly, Petitioners cite no published decision that has held an evidentiary hearing was required by law for a similar suspension of an elementary school student.

Petitioners also contend that section 1094.5 governs because District was acting “in a quasi-adjudicative capacity.” (OB 11.) While section 1094.5 often applies to quasi-adjudicative decisions, the determinative feature of administrative mandamus is that the court reviews the validity of an administrative decision “made as the result of a proceeding in which by law a hearing is required to be given, evidence is required to be taken, and discretion in the determination of facts is vested in the inferior tribunal.” (CCP § 1094.5(a).) If those requirements are not met, section 1085 applies even if the decision could otherwise be characterized as quasi-adjudicative. (See Blue Cross v. State Dep't of Health Servs. (2007) 153 Cal.App.4th 322, 329 [although informal oral presentation allowed, review procedures did not require hearing; thus review by traditional mandate].)

Because an evidentiary hearing was not required by law for the five-day suspension, the petition challenging such suspension is governed by CCP section 1085.

No Evidentiary Hearing Required for Doe 1’s Challenge to Doe 2’s Student Records; Petition is Governed by CCP Section 1085

Respondents contend that John Doe 1 cannot challenge Respondents’ decision related to Doe 2’s student records by administrative mandate because Education Code section 49070 does not require an evidentiary hearing, but rather only requires a “closed session” appeal before District’s governing board. (Oppo. 12.) The court agrees.

While the governing board “may convene a hearing panel” pursuant to Education Code section 49071(a), and while Respondents did convene a hearing panel in this case, section 1094.5 only applies if the evidentiary hearing was required by law. Here, the District Board voluntarily convened a hearing panel pursuant to section 49071(a). (AR 1.) It was not required by law to do so.

Without analysis of the statutory text or citation to case law, Petitioners contend that “Education Code § 49070(b)-(c) does, by its plain terms, contemplate a hearing when student records are challenged by a parent or guardian.” (OB 10, fn. 1 and OB 20:27-28) Petitioners elaborate in reply, stating: “The logical and reasonable reading of the statute is that the parent or guardian bringing the challenge, as well as the employee who recorded the information, will present evidence to the superintendent or governing board in the meeting or closed session. Otherwise, there would be no reason to hold the meeting or closed session and the challenge could be decided on the papers alone, rendering the meeting requirement superfluous.” (Reply 7.)

The court is not persuaded by these arguments. Section 49070(b) states that the superintendent or his or her designee “shall meet” with the parents and the employee who recorded the information in question. “The superintendent shall then sustain or deny the allegations.” (§ 49070(b).) Section 49070(c) requires a similar process before the school board: “[T]he governing board shall, in closed session with the parent or guardian and the certificated employee who recorded the information in question, if any, and if the employee is presently employed by the school district, determine whether or not to sustain or deny the allegations.” There is no requirement in section 49070(b) or (c) of an evidentiary hearing or that the superintendent or board take evidence. While the superintendent or board presumably could elect to take evidence from the parties, section 1094.5 only applies if “by law a hearing is required to be given.” Petitioners cite no authority that the informal meeting or closed session required by the statute, without any requirement to take evidence, constitutes a hearing within the meaning of section 1094.5.

Because an evidentiary hearing was not required by law, the petition challenging Doe 2’s educational records under section 49070 is also governed by CCP section 1085.

There are two essential requirements to the issuance of an ordinary writ of mandate under Code of Civil Procedure section 1085: (1) a clear, present and ministerial duty on the part of the respondent, and (2) a clear, present and beneficial right on the part of the petitioner to the performance of that duty. (California Ass’n for Health Services at Home v. Department of Health Services (2007) 148 Cal.App.4th 696, 704.) “Normally, mandate will not lie to control a public agency's discretion, that is to say, force the exercise of discretion in a particular manner. However, it will lie to correct abuses of discretion. In determining whether a public agency has abused its discretion, the court may not substitute its judgment for that of the agency, and if reasonable minds may disagree as to the wisdom of the agency's action, its determination must be upheld. A court must ask whether the public agency's action was arbitrary, capricious, or entirely lacking in evidentiary support, or whether the agency failed to follow the procedure and give the notices the law requires.” (County of Los Angeles v. City of Los Angeles (2013) 214 Cal.App.4th 643, 654.) “Courts exercise limited review in ordinary mandamus proceedings. They may not reweigh the evidence or substitute their judgment for that of the agency.” (Ridgecrest Charter School v. Sierra Sands Unified School Dist. (2005) 130 Cal.App.4th 986, 1002-03.)

“‘On questions of law arising in mandate proceedings, [the court] exercise[s] independent judgment.’” (Christensen v. Lightbourne (2017) 15 Cal.App.5th 1239, 1251.) The interpretation of statute or regulation is a question of law. (See State Farm Mut. Auto. Ins. Co. v. Quackenbush (1999) 77 Cal.App.4th 65, 77.) “A challenge to the procedural fairness of the administrative hearing is reviewed de novo on appeal because the ultimate determination of procedural fairness amounts to a question of law.” (Nasha L.L.C. v. City of Los Angeles (2004) 125 Cal.App.4th 470, 482.)

As discussed below, the court decides the petition based on procedural due process grounds. Petitioners’ due process arguments are analyzed under a de novo standard under both section 1085 and section 1094.5. Thus, even if section 1094.5 applied to this petition, the court would reach the same result.

Respondents contend that, to the extent the petition is governed by CCP section 1094.5, then Petitioners’ claim “is barred by the 90 day statute of limitations applicable to administrative mandamus claims.” (Oppo. 13, citing CCP § 1094.6(b).) As discussed, Respondents contend and the court finds that CCP section 1085 governs the writ petition in full. Accordingly, the limitations period in section 1094.6(b) does not apply.

Petitioners argue that the procedure used to suspend Doe 2 violated his right to due process, including an alleged right to an evidentiary hearing, and also statutory “obligations” that apply. (OB 12-16; Reply 11-12.)

For the reasons discussed above as to the standard of review, Petitioners do not show that Doe 2 was entitled to an evidentiary hearing to challenge the five-day suspension. (See OB 12-13; Reply 11-12; Doe 1 Decl. and AR generally.)

Adequate Investigation; Holding of Informal Conference in Presence of Armed Police Officer and Without Doe 2’s Parents Being Present; and Related Procedural Issues

Petitioners contend that the investigation conducted by Principal Brown was “flawed” because it occurred too long after “any money had allegedly changed hands, and after a new academic year had started.” Petitioners contend that “[a]ny witness statements taken that long after the fact are likely to be of dubious reliability, with child witnesses being especially problematic in this regard.” (OB 13-14.)

The lapse in time between the money “changing hands” and Principal Brown’s investigation does not show an unfair procedure. Principal Brown first received notice that Doe 2 allegedly took money from another classmate on August 8, 2019, at the end of the summer break. (AR OB 6; 44-45.) Principal Brown interviewed Doe 2 and five student witnesses on or about August 22, 2019, when the new school year started. (AR 36-43.) Doe 2 allegedly took the student’s money the last school year, before the summer break. The delay was not so substantial to suggest that student witnesses could not recollect the events at issue. Moreover, any staleness of the witnesses’ statements goes to whether the evidence supports the findings of misconduct, not the adequacy of the investigation.

Petitioners cite various academic articles, which have not been submitted to the court or judicially noticed, for the propositions that juvenile witnesses are “more likely than adults to make false statements, wrongfully implicating others” and “[m]inors are also more likely than adults to feel pressure to conform to the requests and instructions of the interviewer.” (OB 13-14.) Relatedly, Petitioners argue that Respondents should not have interviewed Doe 2 in the presence of an armed police officer[1] and without his parents also present. Petitioners contend that any confession obtained from Doe 2 in such circumstances has “no probative value” because “minors [are] more vulnerable to coercion from authority figures such as police.” (OB 15-16, citing In re Elias V. (2015) 237 Cal.App.4th 568, 596 [“Given their vulnerabilities to interrogation, the inordinate number of false confessions given by juveniles should come as no surprise.”]; Miller v. Alabama (2012) 567 U.S. 460, 477 [discussing the psychological “incompetencies associated with youth—for example, his inability to deal with police officers”].)

Here, the Education Code required an informal conference between Principal Brown, Doe 2, and, if practicable, “the teacher, supervisor, or school employee who referred the pupil to the principal” before any suspension was imposed. (Educ. Code § 48911(b).) The statute did not require Principal Brown to meet with Doe 2’s parents prior to imposing the suspension.

Common law principles and relevant case law also did not require Principal Brown to meet with Doe 2’s parents prior to imposing the suspension and did not preclude Principal Brown from interviewing Doe 2 in the presence of an armed police officer.

“To begin, minor students are required to be in school. (Ed. Code, § 48200.) While they are there, the ‘primary duty of school officials and teachers ... is the education and training of young people. A State has a compelling interest in assuring that the schools meet this responsibility. Without first establishing discipline and maintaining order, teachers cannot begin to educate their students. And apart from education, the school has the obligation to protect pupils from mistreatment by other children, and also to protect teachers themselves from violence by the few students whose conduct in recent years has prompted national concern.’” (In re Randy G. (2001) 26 Cal.4th 556, 562-563.) “‘At school, events calling for discipline are frequent occurrences and sometimes require ‘immediate, effective action.’ [Citation.] To respond in an appropriate manner, 'teachers and school administrators must have broad supervisory and disciplinary powers.'” (Ibid.)

Here, Students 1 and 5 both reported that Doe 2 threatened violence when taking money from Student 1. (AR 37, 42.) Doe 2 also admitted to having anger issues and to taking substantial sums of money from a fellow classmate. (AR 36.) While it is unclear whether Principal Brown knew of the alleged threats of violence before she interviewed Doe 2 (an issue the court further addresses below), the suspension letter states that a report was made that Doe 2 “extorted money from a fellow classmate.” (AR 44.) As Petitioners acknowledge, extortion of money is a serious charge under the criminal law, and Principal Brown could treat it as serious and potentially dangerous misconduct between classmates. (See Educ. Code §§ 48900(e), 48900.5(a).) In these circumstances, while conducting the interview of a third-grader with an armed officer present may have been a debatable decision, the court cannot say that it was an abuse of discretion by Principal Brown. Notably, Petitioners cite no case that supports their apparent position that Principal Brown lacked discretion to hold the interview with an officer present.

The court is also not persuaded by Petitioners’ citations to academic articles, which have not been submitted in the record, or to case law that the presence of Officer Li at the interview coerced a confession from Doe 2. The interview transcript does not show any questions made by Officer Li; all questions were made by Principal Brown. (AR 36.) Petitioners could have submitted a declaration of Doe 2 if he believed that Officer Li’s presence caused him to make a false confession. Petitioners submit only a declaration of Doe 1, the father.

Nor do Petitioners show that any leading questions made by Principal Brown violated due process or statutory rules. (OB 16-17.) Principal Brown did not suggest the name of the student form whom Doe 2 took money. (AR 36.) She also made open-ended, follow-up questions, like “how much money did you take?”

Finally, Petitioners contend that “Respondents unreasonably refused to reschedule a second meeting even though they knew that Doe 1 would be out of the country” and “worst of all, they refused to hold a meeting at all … when Doe 1 requested to have his lawyer present.” (OB 13.) These arguments do not prove that Doe 2’s due process rights were violated. As discussed, Petitioners do not show that Respondents were required to hold a conference with Doe 2’s parents before imposing the suspension. (See Educ. Code § 48911(b).) The court cannot say it was unreasonable for District’s representative to decline to meet with Doe 1 and his attorney when a District attorney was not available. (Yeomans Decl. Exh. 1, 2, & 3; AR 19-22.) Any purported error in not meeting with Doe 2’s parents on August 28, 2019, was non-prejudicial and does not establish a due process violation because the five-day suspension ended on August 28, 2019, and no further disciplinary measures were imposed against Doe 2. (AR 44-45.)

Based on the foregoing, Petitioners do not show that the investigation was inadequate or that it violated due process or any procedural rules for Principal Brown to interview Doe 2 in the presence of an armed officer and without Doe 2’s parents being present.

Does Sufficient Evidence Support the Finding that Doe 2 Committed or Attempted to Commit Robbery or Extortion?

Petitioners argue that Doe 2 could not have committed robbery or extortion “under any available definition” and that, even under a deferential arbitrary and capricious standard, Respondents abused their discretion in finding that Doe 2 violated Education Code section 48900(e). (OB 13-19.) Petitioners argue, inter alia, that “Doe 2, at eight years old, was not capable of forming the necessary level of criminal intent to commit robbery or extortion.” (OB 18.) Respondents contend that criminal intent need not be proven for a student suspension; that the common understanding of “robbery” and “extortion” apply, not Penal Code definitions; and that Doe 2 admitted to facts supporting a finding of extortion. (Oppo. 19-22.)

Section 48900(e) states that the superintendent may suspend a student that “[c]ommitted or attempted to commit robbery or extortion.” Petitioners argue that Penal Code definitions of robbery and extortion should apply, while Respondents argue that the common understanding of such words should apply. The parties raise a question of statutory construction.

“The rules governing statutory construction are well settled. We begin with the fundamental premise that the objective of statutory interpretation is to ascertain and effectuate legislative intent. [Citations.] To determine legislative intent, we turn first to the words of the statute, giving them their usual and ordinary meaning. [Citations.] When the language of a statute is clear, we need go no further. However, when the language is susceptible of more than one reasonable interpretation, we look to a variety of extrinsic aids, including the ostensible objects to be achieved, the evils to be remedied, the legislative history, public policy, contemporaneous administrative construction, and the statutory scheme of which the statute is a part.” (Nolan v. City of Anaheim (2004) 33 Cal.4th 335, 340.)

When interpreting a statute, the court must construe the statute, if possible to achieve harmony among its parts. (People v. Hull (1991) 1 Cal. 4th 266, 272.) The court “must select the construction that comports most closely with the apparent intent of the Legislature, with a view to promoting rather than defeating the general purpose of the statute, and avoid an interpretation that would lead to absurd consequences.” (People v. Jenkins (1995) 10 Cal.4th 234, 246.)

Notably, the legislature expressly incorporated Penal Code definitions into some subdivisions of section 48900. (§ 48900(d), (j), (n) [Penal Code definitions of controlled substance, drug paraphernalia, and sexual assault battery].) In other subdivisions, the legislature supplied its own definition of terms in the statutory text itself. (§ 48900(m), (q), (r) [imitation firearm, hazing, and bullying].) The legislature did neither for robbery and extortion in section 48900(e). “When interpreting statutory language, we may neither insert language which has been omitted nor ignore language which has been inserted.” (See People v. National Auto. and Cas. Ins. Co. (2002) 98 Cal.App.4th 277, 282.) Because the legislature elected not to incorporate definitions from the Penal Code in section 48900(e), while expressly doing so in other parts of the same statute, it is reasonably inferred that the legislature did not intend to incorporate the Penal Code definitions of robbery and extortion. To the extent there is ambiguity, Petitioners cite no legislative history or extrinsic aids to support their interpretation under which Penal Code definitions were impliedly incorporated.

Accordingly, the court agrees with Respondents’ interpretation of section 48900(e) under which the common understanding of robbery and extortion should apply. Furthermore, since the suspension is a matter of school discipline, Respondents were not required to prove that Doe 2 acted with criminal intent. Petitioners cite no authority to the contrary.

Common definitions of the verb “rob” include “to take something away from by force” or “by violence or threat.” (merriam-webster.com, definition of “rob”.) Common definitions of the verb “extort” include “to obtain from a person by force, intimidation, or undue or illegal power.” (merriam-webster.com, definition of “extort”.)

The court concludes that a student that took money from another student by physical force or threat of physical violence could have committed robbery and/or extortion within the meaning of section 48900(e). However, because Principal Brown did not inform Doe 2 of the allegation that he took money by threat of physical violence, Respondents cannot rely on such evidence to sustain the findings that Doe 2 violated section 48900(e).

Respondents contend that “[b]y his own admission, John Doe 2 took several hundred dollars from his classmate, Student 1, by threatening to exclude Student 1 from their social group.” Respondents conduct that such threat constitutes extortion. (Oppo. 21.) Petitioners contend that Doe 2 did not admit to taking Student 1’s money without permission of Student 1. (Reply 16-17.)

According to the interview transcript, Brown asked Doe 2 “who he took money from”; “how much money did you take”; and “why did you take the money?” Doe 2 replied that he took the money from Student 1. As a reason, Doe 2 stated “he’s my friend, not really sure.” Later, Brown asked Doe 2 what he “told Student 1 would happen if he did not give him the money he asked for?” In response to this leading question, Doe 2 reported that “he told Student 1 he would no longer be in the group if he did not give him the money.” (AR 36.)

A reasonable decisionmaker could conclude from the transcript that Doe 2 admitted to taking money from Student 1 by threat of excluding him from a social group. Applying common definitions of robbery or extortion, a reasonable decisionmaker arguably could conclude that Doe 2’s admission supports a finding of robbery or extortion, in violation of section 48900(e).

Petitioners also contend that “Respondents acted arbitrarily and capriciously in suspending Doe 2 for five days without so much as attempting any intermediate disciplinary steps” as required by Education Code section 48900.5. (OB 19.) Section 48900.5(a) states that, subject to exceptions, “suspension … shall be imposed only when other means of correction fail to bring about proper conduct.” The statutes further provides that:

(1) A conference between school personnel, the pupil's parent or guardian, and the pupil.

(2) Referrals to the school counselor, psychologist, social worker, child welfare attendance personnel, or other school support service personnel for case management and counseling.

(3) Study teams, guidance teams, resource panel teams, or other intervention-related teams that assess the behavior, and develop and implement individualized plans to address the behavior in partnership with the pupil and the pupil's parents.

(4) Referral for a comprehensive psychosocial or psychoeducational assessment, including for purposes of creating an individualized education program, or a plan adopted pursuant to Section 504 of the federal Rehabilitation Act of 1973 (29 U.S.C. Sec. 794(a)).

(5) Enrollment in a program for teaching prosocial behavior or anger management.

(7) A positive behavior support approach with tiered interventions that occur during the schoolday on campus.

(8) After school programs that address specific behavioral issues or expose pupils to positive activities and behaviors, including, but not limited to, those operated in collaboration with local parent and community groups. (§ 48900.5(b).)

As argued in opposition, and not rebutted in reply, there is an exception under which a superintendent may suspend a pupil without intermediary steps if the principal determines that the student violated section 48900(a)-(e) “or that the pupil's presence causes a danger to persons.” (§ 48900.5(a); Oppo. 15-16; Reply 17-18.)

It would be reasonable and consistent with section 48900.5(a) for a school district to suspend, in the first instance, a student found to have taken a classmate’s money by threat of physical violence. Threatening to exclude a classmate from a social group could be addressed in the first instance through counseling or an anger management program. However, section 48900.5(a) vests discretion in the superintendent to suspend a student in the first instance for any violation of section 48900(e). The court cannot say that it was an abuse of discretion, when all evidence is considered, to impose a five-day suspension in the first instance for extortion based on a non-violent threat.

Did Doe 2 Receive Adequate Notice of the Charges and Evidence Against Him, and Reasonable Opportunity to Respond?

As discussed, due process requires that students facing suspension be given notice of the charges and a reasonable opportunity to respond to the charges under the circumstances of the case. (Goss v. Lopez (1975) 419 U.S. 565, 581-583; Granowitz v. Redlands Unified School Dist. (2003) 105 Cal.App.4th 349, 354-56.)

In the opening brief, Petitioners asserted that Doe 2 was entitled to a trial-like evidentiary hearing. (OB 12-13.) Petitioners also asserted that the investigation was flawed, including the manner in which Doe 2 was interviewed. (OB 13-16.) The court has concluded that these arguments do not show a denial of due process. Petitioners otherwise did not develop an argument in the opening brief that Doe 2 was not given sufficient notice of the charges and evidence against him, or an opportunity to respond in the informal conference.

However, in reply, Petitioners argue that Doe 2 “was not given any description of what the school thinks happened,” and that such lack of notice violated Goss and similar case law. (Reply 11: 25-28.) Petitioners argue that “Dr. Brown’s own notes show that Doe 2 was not questioned about any violence or threat of violence (including supposed threats to punch Student 1).” (Reply 16.) This specific argument was not raised in the moving papers or the petition. “The salutary rule is that points raised in a reply brief for the first time will not be considered unless good cause is shown for the failure to present them before.” (Balboa Ins. Co. v. Aguirre (1983) 149 Cal.App.3d 1002, 1010.) The petition was filed in December 2020, and Petitioners had sufficient time to develop all arguments in the opening brief. While the court could reject the new reply argument on procedural grounds, the court declines to do so. Petitioners’ argument about lack of notice is important to adjudication of the writ petition and presents a pure legal issue based on the administrative record. Respondents’ counsel may address the reply argument at the hearing and, if necessary, in a supplemental written brief.

Based on the administrative record presented, it appears Doe 2 was not informed of all evidence against him. In opposition, Respondents rely on statements of Student 1 and Student 5 that Doe 2 “threatened to punch” Student 1 in the face if Student 1 talked to any of Doe 2’s friends or did not give Doe 2 the money. (Oppo. 21-22, citing AR 37-38 and 42-43.) Respondents also cite corroborating statements of Students 2, 3, and 4 that Student 1 gave Doe 2 “hundreds of dollars” to spend on food, including up to $800 as stated by Student 3. (Oppo. 21-22, citing AR 39-41.) However, the transcript of the interview of Doe 2 does not state that Principal Brown informed Doe 2 of any of this evidence. Principal Brown asked Doe 2 “who he took money from,” which suggests she did not inform him of the statements of Students 1-5 that Doe 2 took money from Student 1. (AR 36.) According to the transcript, Principal Brown also did not inform Doe 2 of the student statements that Doe 2 threatened to punch Student 1 if he talked to his friends or did not give him money. Indeed, it is unclear from the record whether Principal Brown interviewed Doe 2 before or after reviewing all handwritten reports of Students 1-5. (See AR 36-44.)

While Respondents should address these issues at the hearing, the court has not found other evidence in the administrative record and the parties’ declarations suggesting that Principal Brown described any of the evidence against Doe 2 at the interview. From context, it seems plausible to infer that some discussion about the charges occurred before the interview set forth at page AR 36 of the record. However, such discussion, if it occurred, has not been presented to the court.

Goss states that “due process requires, in connection with a suspension of 10 days or less, that the student be given oral or written notice of the charges against him and, if he denies them, an explanation of the evidence the authorities have and an opportunity to present his side of the story.” (Goss v. Lopez (1975) 419 U.S. 565, 581 [italics added].)[2] Prior to the suspension, the Education Code required “an informal conference conducted by the principal, [or] the principal’s designee” during which “the pupil shall be informed of the reason for the disciplinary action…and the evidence against him or her, and shall be given the opportunity to present his or her version and evidence in his or her defense.” (Educ. Code § 48911(b) [bold italics added].) Thus, section 48911(b) by its plain language required Respondents to inform Doe 2 of the evidence against him.

Procedural errors, “even if proved, are subject to a harmless error analysis.” (Hinrichs v. County of Orange (2004) 125 Cal.App.4th 921, 928.) “The question is whether the violation resulted in unfairness, in some way depriving [Petitioner] of adequate notice or an opportunity to be heard ….” (Rhee v. El Camino Hosp. Dist. (1988) 201 Cal.App.3d 477, 497.)

Respondents contend that the finding of extortion was supported by Doe 2’s admission that he “took several hundred dollars from his classmate, Student 1, by threatening to exclude Student 1 from their social group.” (Oppo. 21, citing AR 36.) Petitioners challenge this interpretation of Doe 2’s statements.

Regardless of any admission made by Doe 2, the court cannot determine from the notice of suspension whether Principal Brown found that Doe 2 “extorted money” based solely on threats to exclude Student 1 from a social group, based on threats of violence, or some combination thereof. (AR 44.) Doe 2 did not admit to threatening violence against Student 1 and he was entitled under due process principles to an opportunity to respond to such a serious allegation. Moreover, it was inherently prejudicial to Doe 2 for the decisionmaker, Principal Brown, to consider evidence that he physically threatened Student 1 without giving Doe 2 an opportunity to respond to such evidence. Due process required, at the least, that Principal Brown explain such evidence at the informal conference. The interview transcript and record do not show that Principal Brown informed Doe 2 of such evidence prior to the suspension.

These issues were raised in reply, and Respondents should address them at the hearing or, if necessary, in a supplemental written brief. Subject to further argument, if the court concludes that Respondents did not disclose all material evidence to Doe 2 prior to his interview and the suspension, and did not give Doe 2 an opportunity to respond to all material evidence, the suspension must be set aside for violation of due process principles set forth in Goss and codified in Education Code section 48911(b).

When all evidence is considered, and given the deferential standard of CCP section 1085, the suspension was not an abuse of discretion. However, if there is no additional record evidence or persuasive argument from Respondents in response to Petitioners’ argument in Reply, the suspension must be set aside on procedural grounds because Principal Brown did not give Doe 2 notice and opportunity to respond to the evidence against him.

Petitioners contend that Respondents must be ordered to expunge the suspension from Doe 2’s school records pursuant to Education Code section 49070. (OB 20-21.) The court agrees.

Section 49070 provides, in pertinent part: “ The parent or guardian of a pupil may file a written request with the superintendent of the school district to correct or remove any information recorded in the pupil's written records that the parent or guardian alleges to be any of the following: … (1) Inaccurate…. (5) Misleading.”

Here, if the court concludes that the five-day suspension imposed on Doe 2 must be set aside because of violations of Doe 2’s right to due process, the reference to the suspension in Doe 2’s student records must also be expunged. References to the suspension would be inaccurate or misleading in light of that ruling.

[1] There appears to be no direct evidence the officer was armed, although that inference seems reasonable and has not been challenged by Respondents.

[2] Based on this italicized language, Goss may or may not require an explanation of the evidence if the student admits to the charges. The court need not decide that point for reasons explained in this decision, including because Doe 2 did not admit to making physical threats against Student 1.