Parents often need all the help they can get in handling school expulsion hearings. One of my favorite cases to attack expulsion hearings for an utter lack of proper evidence is John A. v. San Bernardino City Unified School District, decided in 1982 by the California Supreme Court.
In this beautiful case, the California Supreme Court evaluated an expulsion of "John A." for allegedly being involved in a large altercation not witnessed by anyone but students. At John A's expulsion hearing, no direct witnesses (e.g. students who actually saw or were involved in the fight) testified, other than John A. Rather, the district's case revolved around reading a summary from the school into the record and written witness statements. When John A. spoke, he explained that he did not strike nor kick the boys involved. Rather, he said the boys were "play boxing." He denied any racial connection, that he yelled derogatory terms, or that he chased anyone. He also disputed the injuries alleged to two of the participants.
The district expelled him for an "unprovoked attack on two students." On appeal to the county board of education and even the lower court, the expulsion was upheld. Although the lower court later allowed the district to submit 30 declarations showing that there had been threats against students involved in school hearings, it appears that no evidence of any threat from John A. to the witnesses was provided.
The California Supreme Court, overturned the expulsion, ordering it expunged from John A's records. In its decision, Justice Broussard explained: "A decision of the governing board to expel must be supported by a preponderance of the evidence..." and "It [district] may not rely on administrative reports when evidence is conflicting and witnesses are readily available."
The court also discussed the denial of the right to cross examination and the evidence supporting the lack of witnesses (alleged witness danger), stating: "While the risk of retaliation may be substantial in some cases, it does not warrant board reliance on reports in all cases or in the instant case where there is no showing or finding of a significant and specific risk of harm..."
This case is significant in that it reinforces the fact that a student may not be expelled based on hearsay alone (see also Education Code §48918(f)) and that if the district wishes to rely on written testimony instead of calling live witnesses, they must show that "disclosure of identity and producing the witnesses would subject the informant to significant and specific risk of harm...."
This case is music to my ears. It not only backs up the education code, but gives an example of what districts cannot do. They cannot expel a student based solely on written statements without direct testimony showing the alleged act(s) occurred. Also, if they wish to exclude a witness and use his or her written statement instead, they must make a specific showing regarding harm. The legislature defines this further in Education Code 48918(f) as "unreasonable risk of psychological or physical harm."
For now, parents embroiled in an expulsion hearing must be aware that if their child did not confess to the alleged "crime" he or she is accused of, the district must provide at least some direct testimony at the expulsion hearing. If the district wants to substitute written statements for live testimony, they must make a specific showing of potential harm to the witness should they testify. This is an area which is often lacking and can be a great argument for appeal. Districts frequently fail to bring anyone who actually saw the alleged incident to the expulsion hearing, which could give the county board or courts a reason to overturn the expulsion altogether on appeal.
Education Law Attorney
LAW OFFICE OF MICHELLE BALL
717 K Street, Suite 228
Sacramento, CA 95814