Gliane v. Long Beach Unified School Dist.

Filed 7/24/07 Gliane v. Long Beach Unified School Dist. CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

APPEAL from a judgment of the Superior Court of Los Angeles County, David P. Yaffe, Judge. Reversed and remanded with direction.

Morrison & Foerster, Sarvenaz Bahar, Monica L. Scheetz; Public Counsel, Pamela S. Schmidt and Daniel Grunfeld for Plaintiff and Appellant.

Parker & Covert and John E. Hayashida for Defendants and Respondents.

INTRODUCTION

Defendant and respondent Long Beach Unified School District (the District) suspended, and then initiated proceedings to expel, plaintiff and appellant MJ Kevyn Gliane (MJ) from an eighth grade middle school. Before conducting an expulsion hearing pursuant to Education Code section 48918,^[1] the District implemented a procedure to transfer MJ involuntarily to a new middle school. In addition, the District maintained documents in MJs official file indicating that he committed an expellable offense.

In response, MJ filed a petition for a writ of mandate seeking to have the trial court order the District to provide MJ with a statutory expulsion hearing pursuant to section 48918 and to expunge MJs records of any reference to the allegedly expellable offense. The trial court denied MJs petition.

We reverse. The District erred by failing to grant MJ a section 48918 due process hearing to respond to the allegation that he committed an expellable offense. Pursuant to John A. v. San Bernardino City Unified School Dist. (1982) 33 Cal.3d 301 (John A.), because the District did not provide MJ with an appropriate hearing, the District failed to make a showing based upon substantial evidence that MJ [c]aused, attempted to cause, or threatened to cause physical injury to another person. ( 48900, subd. (a)(1).) We conclude that the District must therefore expunge MJs records of any reference to the allegedly expellable offense. We remand this case to the trial court to enter a new and different judgment consistent with this opinion.

FACTUAL AND PROCEDURAL BACKGROUND

At the time of the incident in question, MJ was an eighth grade student at Hudson Middle School.

1. The Middle School Report of Incident

According to a Hudson Middle School Report of Incident, prepared by the acting principal, Victoria Avila (Principal Avila), on January 7, 2005, several students were serving lunch detention in Ms. Tambles classroom. MJ unscrewed the top of a water bottle belonging to Tamble. Another student put liquid white board cleaner inside the water bottle. When Tamble picked up the bottle to take a drink, a student who witnessed the incident told her not to drink from it.

On January 7, 2005, Principal Avila interviewed MJ and the other student. Avila concluded that there was no indication to warrant that the cleaner was placed inside the water bottle with an intent to harm/injure the teacher. Avila also noted that [t]here was no indication that [the] teacher felt threatened or unsafe.

The Report of Incident also stated that on January 10, 2005, two students who witnessed the incident provided additional information. Based upon their statements, Principal Avila noted that [b]ased upon further investigation, accused students changed their stories about the situation and admitted that the cleaner was put inside the water bottle, not on the outside of the bottle[.]

The Report of Incident stated that MJ and the other student admitted to the incident. In addition, that report stated than when asked why he did it, MJ stated that he did not like Tamble, and acknowledged that he knew she would become sick if she drank from the bottle.

The Report of Incident also stated that on the previous day, MJ had brought a small knife to school. He allegedly used the knife to poke a hole in the bottle of liquid white board cleaner.

2. Principal Avila Suspends MJ

Principal Avila suspended MJ on January 11, 2005 for five days pending expulsion. The Notice of Suspension stated that MJ [p]laced liquid white board cleaner into a teachers water bottle.

3. Parent Conference Report

On January 12, 2005, Principal Avila conducted a parent conference with MJ, MJs mother, and the assistant principal. The Parent Conference Report stated that MJ was given the opportunity to tell his side of the incident, but was not permitted to confront the accusers. The Parent Conference Report also stated that MJ admitted his participation in the incident and that he fully understood the offense and recommended disciplinary action.

In addition, the Parent Conference Report stated: Mother was told that MJ and another student had deliberately put liquid white board cleaner into his teachers water bottle. Mother understood the incident and was told about the 5-day suspension pending expulsion and [the] District would contact her regarding a hearing date.

On January 13, 2005, a District representative went to MJs home. At that time, the representative picked up all of MJs textbooks, work books, and other class materials. MJs mother telephoned Principal Avila to request return of the materials so that MJ would not fall behind during the period of suspension. According to MJs mother, Principal Avila stated that the materials would be returned immediately. The District, however, never returned the materials to MJ.

4. Referral for Immediate Action Expulsion

On January 14, 2005, Principal Avila prepared a document entitled Referral for Immediate Action [] Expulsion (Referral for Expulsion). The Referral for Expulsion stated that MJ admitted his participation in the incident. It also indicated that expulsion was warranted for the incident in question.

5. Extension of Suspension

On January 15, 2005, Principal Avila prepared a Notice of Extension of Suspension. The Notice of Extension stated that the presence of MJ at the school or in an alternative school placement would cause a danger to persons and a threat of disrupting the instructional process. Principal Avila then described the incident: Student deliberately participated in placing liquid white board cleaner inside the water bottle of a teacher which could have been ingested. He also punctured the white board cleaner . . . on a prior day with a knife he brought to school (self-admitted).

Principal Avila concluded that [i]ntent to cause harm was indicated. Based upon the incident, Principal Avila stated that she was extending the suspension until the governing board could render a decision on the recommendation to expel.

6. The Written Response of MJs Parents

On January 19, 2005, MJs parents sent a three-page letter to Principal Avila as an appeal of the suspension. There, MJs parents admitted to MJs involvement in the incident and expressed sincere apologies. His parents, however, wrote that MJ did not intend to harm the teacher.^[2] They requested that the school lift the suspension and not expel MJ. They encouraged the school to require MJ to participate in community service.

7. MJs Parents Confer with the Districts Hearing Officer

In opposition to MJs writ petition, the school district filed the declaration of Dee Wheeler, the hearing officer for the Long Beach Unified School District.

In the declaration, Hearing Officer Wheeler stated that she spoke by telephone with MJs father on January 20, 2005 about the Referral for Expulsion. Wheeler declared: [MJs father] presented his sons version of what happened . . . . He said another student was involved. It was my impression that he placed the blame on the other student.

Wheeler then explained the expulsion process to MJs father and stated what would happen if the expulsion were changed to a request for placement. Wheeler stated: In a request for placement, the student would be administratively transferred to another school or program within the District or to a program operated by the Los Angeles County Office of Education (LACOE).

Wheeler completed a permit for MJ to attend an LACOE full school day program during the suspension. MJs father rejected the LACOE program. In response, Wheeler stated that MJ could go to the Truancy Center to perform his studies. MJs father rejected that offer as well.

According to Hearing Officer Wheelers declaration, on January 21, 2005, MJs father telephoned Wheeler to discuss the incident and to request that the District permit MJ to return to Hudson Middle School. Wheeler declared: He explained the incident again to me as MJ told it. [MJs father] believed the other student put the substance in the teachers water bottle although he said MJ may have unscrewed the bottle lid. He wanted MJ to return to Hudson Middle School.

Hearing Officer Wheeler telephoned MJs father on January 24, 2005 to notify him that the District would conduct an expulsion hearing on February 16, 2005. Wheeler told MJs father that he could bring an attorney to the hearing. In addition, during the conversation, MJs father asked if MJ could be placed in a regular school without going through the hearing. Wheeler responded that this would be possible if the District Guidance Committee changed the request for expulsion to a request for placement.

Wheeler then called MJs father on January 25, 2005. The father reiterated that MJ was not the main person involved in the incident and again apologized.

Wheeler informed the father that she had completed a permit for MJ to participate in the LACOE program and that they could discuss the LACOE program at the pre-expulsion conference. In response, MJs father asked about other options for MJ. Wheeler described a program called Opportunities for Learning (OPFL), which was an independent study type program and was not operated by the District. Instead, OPFL was a public school designed for at risk students (including highly gifted and home-schooled students) using an independent study format.

On January 26, 2005, Wheeler called MJs father to inform him that the paperwork for the expulsion hearing was ready. Wheeler informed him that she wanted to meet with MJ, his father or mother at her office on January 28, 2005. The father stated that MJs mother would meet with Wheeler.

8. Written Notice of Expulsion Hearing

On January 26, 2005, Wheeler sent MJs parents a notice of an expulsion hearing for February 16, 2005. The written notice summarized the incident, stating: MJ . . . and another student tampered with the teachers water bottle and put liquid dry erase board cleaner into the teachers water bottle.

The notice stated that the incident was a violation of section 48900, subdivision (a)(1). The notice stated that MJs parents could be represented by counsel and that they would have the opportunity to present evidence and question witnesses.

9. MJ and Mother Meet With Hearing Officer Wheeler

On January 28, 2005, Wheeler met with MJ and MJs mother. MJ gave his version of the incident. He stated that he did not pour anything into the teachers water bottle.

10. District Changes Expulsion to Request for Placement

The Districts director of placement services, Karen Hilburn, submitted a declaration in this case. After reviewing Principal Avilas decision to expel MJ, Hilburn met with Wheeler and Shirley Crowe-Massey, a program administrator in Hilburns department. Hilburn and Massey-Crowe together comprised the Districts Guidance Committee.

The three District employees, Hilburn, Wheeler and Crowe-Massey, concluded there was sufficient evidence to expel MJ. Nevertheless, the Districts Guidance Committee concluded that placement in another District program, not expulsion, was the appropriate outcome for MJ.

On January 28, 2005, Wheeler telephoned MJs father. She told him that the District changed the request for an expulsion to a request for placement. Wheeler concluded that MJs father was happy about this news. He asked if MJ could return to Hudson Middle School. Wheeler responded that MJ still had responsibility for the incident and that he would be placed in an alternative school. Wheeler informed MJs father that another District employee would determine MJs placement.

Placement Director Hilburn then spoke with Principal Avila. Principal Avila informed Hilburn that she did not want to expel MJ, but instead, wanted to place him in an alternative educational placement.

11. MJs Proposed Placement

On February 3, 2005, the Districts placement counselor, Mr. G.S. Hart, met with MJs mother to arrange for MJs placement. Hart submitted a declaration. There, Hart declared that during the meeting, MJs mother downplayed MJs involvement in the incident. She suggested that another student took advantage of MJ. Specifically, about the incident, MJs mother told Hart that it was the other boys idea; MJ had no concept of what the other boy was trying to do; MJ opened the water bottle as a courtesy to the other boy; MJ did not know the other boy and did not associate with him; MJ is mentally slow and does not understand English very well, which allowed the other boy to take advantage of MJ; and MJ had never before been in trouble at Hudson Middle School.

Hart offered MJ placement at Stephens Middle School, the closest middle school other than Hudson Middle School. MJs mother rejected the offer. In response, placement counselor Hart offered MJ placement at Washington Middle School, which the mother also rejected.

In her declaration, MJs mother disputed that Hart offered MJ placement at either Stephens or Washington Middle Schools. MJs mother declared that Hart informed her that Stephens and Washington Middle schools would not accept MJ because of the water bottle incident.

12. A New Referral for Action Placement

Consistent with this decision not to expel MJ, on February 4, 2005, Principal Avila submitted a new referral, called Referral for Immediate Action Placement.

13. District Placement Counselor Offers Additional Placements

On February 4, 2005, according to placement counselor Harts declaration, Principal Avila provided Hart with information about the incident in question. Avila told Hart that MJ was involved in the planning of the incident. Hart concluded that MJ needed to be placed in a facility where he could be supervised carefully.

That same day, Hart telephoned MJs mother. He offered MJ placement at the Guidance Opportunity Class, a short term, one semester intervention program for students who were having difficulty at their regular school. According to Hart, MJs mother rejected the offer.

Placement Officer Hart then met with the Districts director of placement services, Karen Hilburn. Together, they decided to place MJ at Robinson Middle School. They chose Robinson because it was similar to Hudson with respect to the size of the student body; it was a K-8 school like Hudson; and it was the closest K-8 school to MJs home. Hart concluded that MJs placement at Robinson would present the least adjustment stress and that placement at Robinson would prevent MJ from returning to Hudson where he would have been involved with the same students and teacher who were central to MJs possible expulsion.

On February 10, 2005, placement counselor Hart sent MJs parents written notice of MJs placement at Robinson Middle School. The notice from the Districts guidance and review committee stated it was an [a]dministrative placement.

14. MJs Parents Appeal Placement at Robinson

On February 16, 2005, MJs parents attorney sent a notice of appeal to placement counselor Hart. There, MJ appealed the decision to place him at Robinson Middle School.^[3] The administrative appeal stated: Although MJ . . . and his parents welcome the decision of the District to not pursue the expulsion, they also feel that an administrative transfer will disproportionately punish MJ . . . without affording him with an opportunity to explain his version of events to an unbiased party. They are concerned about the one-month delay in communicating with them, resulting in MJ . . . being out of school for that time period. MJ . . . has expressed remorse for his behavior and does not present a danger to others, nor is there any reason to believe that his actions will be repeated. A transfer will not be in [MJs] best interests. (Original underlining omitted.)

After being contacted by placement counselor Hart, on February 23, 2005, MJs attorney redirected the notice of appeal to Hilburn, the Districts director of placement services. MJs attorney requested a hearing as soon as possible.

On March 1, 2005, MJs attorney sent a second correspondence to the Districts director of placement services, Hilburn. The attorney wrote: MJ has been out of school since January 11, and this delay in responding to his parents will adversely impact MJs academics and violate his due process rights.

MJs attorney criticized the District for failing to cite the section of the Education Code authorizing the transfer. The attorney also stated that the District failed to give MJ a hearing prior to the transfer. The attorney concluded: MJ and his parents dispute that MJ committed an expellable offense. Furthermore, they have specific concerns about the evidence that is being used against MJ. Finally, MJ lives across the street from Hudson Middle School and has a sibling [who] attends that school.

On March 4, 2005, the District notified MJs parents that the appeal would be heard on March 8, 2005. In response, MJs attorney sent a letter to the Appeal Board. There, MJs attorney acknowledged that MJ opened the water bottle. The attorney, however, asserted that MJ did not participate in the spraying of the bottle, and requested the chance to cross-examine MJs accusers, as well as to present evidence as to MJs role in the incident.^[4] MJs attorney also asserted that a teacher pressured student witnesses to make statements implicating MJ. The attorney also denied that MJ ever brought a knife to school.

15. The Administrative Appeal

On March 8, 2005, a panel of three principals with no prior involvement in the case heard MJs appeal. An attorney represented MJs family. The panel consisted of Pete Davis, Connie Jensen and Monica Daley, none of whom were from Hudson or Robinson Middle Schools. Placement counselor Hart served as the chairperson of the hearing.

The District did not make a record of the proceeding. The District did not call any witnesses. Principal Avila from Hudson Middle School did not attend.

According to the declaration of placement counselor Hart, the hearing lasted 45 minutes. At the hearing, MJs attorney, MJ, his father and mother had the opportunity to speak. They admitted that the incident occurred, but stated that it was an accident and that MJ did not intend to hurt anyone.

The panel of three principals unanimously agreed with the Districts decision to transfer MJ to Robinson Middle School. On March 9, 2005, the District sent MJ notice of the transfer to Robinson Middle School.

16. MJ Enrolls at Robinson Middle School

On March 15, 2005, MJ enrolled at Robinson Middle School. He was enrolled at Robinson until September 21, 2005.

17. MJ Files Petition for a Writ of Mandate

On June 7, 2005, MJ filed a petition for a writ of mandate and a complaint for declaratory relief. There, MJ denied any involvement in the water bottle incident. In addition, MJ claimed that he was denied due process. Specifically, MJ asserted that the District denied him due process because the District did not hold an expulsion hearing at which time MJ could present evidence and confront his accusers. MJ stated that an expulsion hearing was required to be held within 30 days of the recommendation for expulsion. MJ also asserted that the conduct of the District forced MJ to remain out of school for more than 30 days.

In his prayer for relief, MJ requested the court to issue a writ to command the District to (1) provide him with a due process hearing, (2) void the administrative transfer to Robinson Middle School, (3) reinstate MJ at Hudson Middle School, and (4) expunge from MJs records any mention of the incident and include a written notice of a rescission of the expulsion. MJ also requested that the court grant declaratory relief to the effect that once the District makes a recommendation of expulsion, it must provide a due process hearing, and that students subjected to an involuntary transfer must also be provided a due process hearing.

18. MJ Returns to Hudson

On September 19, 2005, the District approved MJs return to Hudson Middle School. On September 22, 2005, MJ returned to Hudson Middle School.

19. Trial Court Denies MJs Writ Petition

On June 6, 2006, the trial court denied MJs writ petition. The trial court explained that the District involuntarily transferred MJ to another middle school and that MJ sued to set aside the transfer as unlawful and to have his records expunged. The court found that the [L]egislature did not intend to make an expulsion hearing a condition precedent to a valid disciplinary transfer to another middle school.^[5]

In addition, the trial court found that the District recognized that students subjected to a disciplinary transfer are entitled to some due process protection. Citing to section 48432.5, the trial court concluded that this due process protection included a meeting between a District representative and the student and his or her parents, and the opportunity to inspect all relevant documents, to question any witnesses, and to present evidence on the pupils behalf. Citing section 48918, subdivision (e), the trial court also concluded that when a transfer is made after an expulsion proceeding has been started but not completed, the student is to be reinstated and his . . . records are to reflect that he was not expelled.

The trial court, however, found that MJ failed to show that the District violated his right to the foregoing due process protection, and that MJ failed to show that he was entitled to have his records expunged. The trial court explained: The transfer became effective after a hearing conducted by the District Guidance and Review Committee of the Long Beach Unified School District, at which [MJ] and his parents were present. [MJ] does not attempt to show that any evidence material to the issue of whether such a transfer should be made was offered to and rejected by the committee. [MJ] also fail[ed] to identify any particular document or entry in his school record that falsely shows that he was expelled, and [MJ] fail[ed] to identify precisely what is in his student record that he wants expunged.

In conclusion, the trial court explained that it was denying MJs writ petition without prejudice to any right that [MJ] may have to inspect his student records and to challenge any of the contents thereof.

The trial court entered judgment in favor of the District. MJ timely appealed from the judgment.

ISSUES PRESENTED

The issues presented are: (1) whether MJ was entitled to a statutory expulsion hearing pursuant to section 48918 prior to the involuntary transfer to Robinson Middle School; and (2) whether the District should be required to expunge his student records of any reference to the referral for expulsion.

STANDARD OF REVIEW

As explained in California Teachers Assn. v. Governing Bd. of Golden Valley Unified School Dist. (2002) 98 Cal.App.4th 369: [A] trial courts findings and judgment on a petition for writ of mandate are upheld if supported by substantial evidence. [Citation.] However, the trial courts construction of a statute is purely a question of law and is subject to de novo review on appeal. (Id. at p. 375.)

DISCUSSION

1. MJ Was Entitled to a Section 48918 Hearing

a. Undisputed Facts Regarding MJs Suspension and Transfer

Principal Avila suspended MJ on January 11, 2005 for allegedly violating section 48900, subdivision (a)(1), which provided that a principal may suspend or expel a student who [c]aused, attempted to cause, or threatened to cause physical injury to another person.^[6] Pursuant to section 48911, subdivision (a), the District was authorized initially to suspend MJ for no more than five consecutive [school days].

On January 14, 2005, Principal Avila issued a document entitled Referral for Immediate Action [] Expulsion. Because the District commenced expulsion proceedings, section 48911, subdivision (g), authorized Principal Avila to extend MJs suspension until the Districts governing board rendered a decision on the expulsion referral.^[7] Thus, on January 15, 2005, Principal Avila extended MJs period of suspension on the basis that MJ was a danger to persons and constituted a threat of disrupting the instructional process.

On February 4, 2005, Principal Avila submitted a new referral entitled Referral for Immediate Action [] Placement. Six days later, on February 10, 2005, the Districts placement counselor, Hart, sent MJs parents written notice of the Districts intent to transfer MJ to Robinson Middle School.

MJs parents then requested an administrative appeal of the placement decision. The appellate panel, consisting of three principals, conducted the administrative appeal on March 8, 2005. The following day, the District sent MJ written notice of the transfer to Robinson Middle School. On March 15, 2005, MJ enrolled at Robinson.

Based upon the foregoing, we conclude that the District suspended MJ from January 11, 2005 to March 15, 2005, a time period of more than 60 days. In addition, it is undisputed that MJs transfer to Robinson was involuntary and that the transfer occurred as part of the expulsion process, but before an expulsion hearing pursuant to section 48918. Moreover, it is undisputed that MJs official school file contains a number of documents indicating that he committed an expellable offense. Finally, it is undisputed that Robinson Middle School was a regular type middle school, which is different from a continuation school ( 48430 et seq.) or a community day school ( 48660 et seq.).

We note, however, that during the time period of MJs suspension, the District offered to place MJ in alternative placements. For example, on January 20, 2005, the Districts hearing officer, Wheeler, offered to place MJ in a LACOE program or in a Truancy Center. MJs father rejected both proposed placements. In addition, according to the Districts placement counselor, Hart, on February 3, 2005, the District offered MJ placement at Stephens or Washington Middle schools. Hart declared that MJs mother rejected the placements. Likewise, on February 4, 2005, Hart offered MJ placement in the Guidance Opportunity Class, a one semester program, which MJs mother also rejected.

Any of the foregoing placements would have constituted involuntary placements for MJ. Thus, the fact that the District made these placement offers does not negate the fact that MJs period of suspension lasted for more than a two-month time period or that the District involuntarily transferred MJ to a regular middle school.

b. MJ Had a Right to a Statutory Expulsion Hearing Prior to an

Involuntary Transfer

The Education Code indicates that a school district may involuntarily transfer students to (1) regular type schools like Hudson and Robinson Middle schools, (2) continuation schools ( 48430 et seq.), and (3) community day schools ( 48660 et seq.).

The Education Code contains statutes governing the procedure for involuntary transfers to continuation schools ( 48432.5) and community day schools ( 48662). It is undisputed, however, that the District did not transfer MJ to a continuation or community day school, but instead to a regular school. Thus, the statutes governing the procedures (and types of hearings) for involuntary transfers to continuation and community day schools are not applicable in the case.

There are two statutes authorizing involuntary transfers to regular schools: (1) section 48917, subdivision (a); and (2) section 48918, subdivision (e). Both statutes indicate that a school district can transfer a student involuntarily to a regular school only after conducting a statutory expulsion hearing pursuant to section 48918, which sets forth the rules and procedures applicable to expulsion hearings.

Section 48917, subdivision (a), permits a school district to transfer a student to another school after an expulsion hearing if the school district determines that the student committed an expellable offense, but decides to suspend the expulsion. The statute provides in pertinent part: The governing board, upon voting to expel a pupil, may suspend the enforcement of the expulsion order for a period of not more than one calendar year and may, as a condition of the suspension of enforcement, assign the pupil to a school, class, or program that is deemed appropriate for the rehabilitation of the pupil. (Italics added.) The governing board can only vote to expel a student after an expulsion hearing pursuant to section 48918.

Section 48918, subdivision (e), sets forth procedures allowing for a transfer following an expulsion hearing. The statute provides: Within three [school days] after the hearing, the hearing officer or administrative panel shall determine whether to recommend the expulsion of the pupil to the governing board. If the hearing officer or administrative panel decides not to recommend expulsion, the expulsion proceedings shall be terminated and the pupil immediately shall be reinstated and permitted to return to a classroom instructional program, any other instructional program, a rehabilitation program, or any combination of these programs. Placement in one or more of these programs shall be made by the superintendent of schools or the superintendents designee after consultation with school district personnel, including the pupils teachers, and the pupils parent or guardian. The decision not to recommend expulsion shall be final. ( 48918, subd. (e); italics added.)

The two statutes authorizing involuntary transfers to regular schools show that the Legislature intended to limit such involuntary transfers to cases in which the District conducted an expulsion hearing pursuant to section 48918. (See California Emergency Physicians Medical Group v. PacifiCare of California (2003) 111 Cal.App.4th 1127, 1131 [ The primary duty of a court when interpreting a statute is to give effect to the intent of the Legislature, so as to effectuate the purpose of the law. ].)

In this case, the District initiated expulsion proceedings against MJ and notified him of the date of the expulsion hearing. It then stopped or suspended the expulsion proceedings and involuntarily transferred MJ to Robinson Middle School, which was not a continuation or community day school, but a regular school.

However, the District did not provide MJ with an expulsion hearing pursuant to section 48918. Subdivisions (b), (f), (g), and (h) of section 48918 set forth the procedures governing an expulsion hearing.^[8] The record shows that the District did not provide MJ with an expulsion hearing consistent with the above-identified subdivisions of section 48918. Instead, the District permitted MJ to set forth his version of the incident at a hearing, which was an administrative appeal of the involuntary transfer and was not conducted in compliance with section 48918.

For example, at the administrative appeal hearing, the District relied solely upon hearsay evidence (i.e., written documents), without making a showing that MJs accusers would be subjected to an unreasonable risk of psychological or physical harm in violation of section 48918, subdivision (f). Thus, the District did not call any witnesses, nor give MJ the opportunity to question the witnesses in violation of section 48918, subdivisions (b)(5) and (f). Likewise, the District did not permit MJ the opportunity to present witness testimony in violation of section 48918, subdivision (b)(5). In addition, there is no indication that the District gave MJ the right to inspect and obtain copies of all of the relevant documents in violation of section 48918, subdivision (b). Moreover, the District did not make a record of the hearing in violation of section 48918, subdivision (g).

We find under these unique facts that the District was obligated to conduct a section 48918 expulsion hearing prior to involuntarily transferring MJ to Robinson Middle School. For the reasons stated below, because the District did not conduct a section 48918 expulsion hearing, the District must expunge from MJs records any reference to the allegedly expellable offense.^[9]

2. The District Must Expunge MJs Records

In Goss v. Lopez (1975) 419 U.S. 565 (Goss), the United States Supreme Court addressed the issue of the constitutional Due Process rights of high schools students suspended for 10 days. (Id. at p. 568.) The Goss court found that the students had a constitutional due process right to notice of the charges and the right to a hearing to examine the schools evidence and to explain the students side of the story. (Id. at p. 581.) In Goss, because the students did not receive these rights, the Supreme Court ordered their files expunged on any reference to the allegedly expellable offenses.

Likewise, in John A., a school district initiated expulsion proceedings against a student for allegedly participating in a fight after a football game. At the expulsion hearing, the evidence was in sharp dispute, but the school district did not call any witnesses. Instead, the district permitted the charging students to submit signed statements as to what occurred. The school district asserted that the charging students should not be compelled to testify because they could be subject to retaliation. The school district, however, made no showing of a significant and specific risk of harm to the charging students. (John A, supra, 33 Cal.3d at p. 308.) The John A. court concluded that this procedure, relying solely upon a written record, was error and that the school district made no showing of witness unavailability.

The John A. court explained that the burden of proof was on the school district to establish cause for expulsion. (John A., supra, 33 Cal.3d at p. 306.) The court concluded: In the circumstances of the instant case the school district failed to establish cause for expulsion by a preponderance of evidence upon which reasonable persons are accustomed to rely in the conduct of serious affairs. (Id. at p. 308.)

In this case, the District accused MJ of engaging in conduct which [c]aused, attempted to cause, or threatened to cause physical injury to another person. ( 48900, subd. (a)(1).) MJ and his parents contested this allegation. They admitted that MJ removed the top to the teachers water bottle, but denied that MJ intended to cause injury. MJs parents asserted that MJ did not understand the nature of the white board cleaner, did not understand that it was harmful, and that he was intending to make a joke.

The District had the burden of proof to establish the facts necessary to show that MJ engaged in prohibited conduct. (John A., supra, 33 Cal.3d at p. 307.) Section 48918, subdivision (f), required the District to prove a violation based upon substantial evidence relevant to the charges. In addition, section 48918, subdivision (f), precluded the District from relying solely upon hearsay evidence, subject to an exception not relevant here. The statute further required the District to prepare findings of fact which were to be based solely on the evidence adduced at the hearing.

MJ was afforded none of these procedural safeguards. The District did not conduct a section 48918 expulsion hearing, make a record of the hearing, call any witnesses, or allow MJ to present witness testimony. Instead, the District allowed the facts of the incident in question to be in MJs file, even though those facts were never properly established at a hearing pursuant to section 48918.

Because the District did not establish by substantial evidence that MJ committed a violation of section 48900, subdivision (a)(1), we conclude that the trial court erred by refusing to order the District to expunge MJs record of any reference to the alleged conduct related to the incident.

In addition, the District did not establish that MJ ever carried a knife to school. On remand, the trial court is instructed to order the District to expunge any reference to the alleged knife incident from MJs records.

DISPOSITION

The judgment is reversed and remanded. The trial court is directed to enter a new and different judgment in favor of MJ consistent with this opinion. MJ is awarded costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KITCHING, J.

We concur:

KLEIN, P. J.

CROSKEY, J.

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^[1] Unless otherwise indicated, all unspecified statutory references are to the California Education Code.

^[2] MJs parents wrote in part: Let me begin by expressing our [familys] deepest apologies to the action and behavior of my son MJ pertaining to the incident . . . . [] . . . [W]e do agree that he behaved irresponsibly and he conducted himself without consideration to others. . . . [W]e strongly believe that he did not intend nor acted to cause injury to his teacher. [] . . . [] We concede that my sons misbehavior on that Fridays incident in full or in part or however small, must be disciplined accordingly as per your initial determination. . . . [] These kids, my son MJ in particular[,] thought that doing a prank on their teacher in front of their classmates by tampering with the teachers water bottle is a way to make fun. It was a terrible way to treat their teacher and is utterly disrespectful, this type of misconduct must be disciplined immediately . . . . [] Since then, MJ is ashamed of what he did and he is regretful and remorseful of his mistakes. . . . He should be made accountable for his actions, but we dont accede that a formal discipline such as a long term suspension or expulsion is appropriate and just.

^[3] On February 11, 2005, the District adopted a procedure for parents to appeal placements: (1) The parents advise the placement counselor of their disagreement with the placement; (2) The District then advises the parents to request an appeal in writing; (3) An appeal panel of three high school principals meets with the family, reviews the case and the proposed transfer; and (4) the District mails to the parents the decision of the panel within three days.

^[4] As to the evidence MJ intended to present, his attorney wrote: MJ obtained two written statements from students who also witnessed the incident and who [will] testify that MJ only opened the bottle, but did not participate in spraying the cleaning fluid.

^[5] The trial court reasoned: The court bases it[s] decision primarily upon section 48662 of the [Education] Code, which authorizes a school district that establishes a community day school to adopt policies and procedure for the involuntary transfer of pupils to such a school if the pupil is expelled OR if the pupil is referred to a community day school by a school attendance review board or other district level referral process. . . . Because a community day school is a special institution for problem students that is not to be situated on the same site as regular school . . . and because the stigma attached to a transfer to such a school is far greater than that involved in the transfer to another regular school, it is unlikely that the [L]egislature intended to require an expulsion hearing for a transfer to a regular school but not to a community day school.

^[6] Section 48900 provides in pertinent part: A pupil may not be suspended from school or recommended for expulsion, unless the superintendent 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 (q), inclusive: [] (a)(1) Caused, attempted to cause, or threatened to cause physical injury to another person.

Similarly, section 48915, subdivision (a), provides in pertinent part: [T]he principal or the superintendent of schools shall recommend the expulsion of a pupil for any of the following acts committed at school . . . , unless the principal or superintendent finds that expulsion is inappropriate, due to the particular circumstance: [] (1) Causing serious physical injury to another person.

^[7] Section 48911, subdivision (g), provides in pertinent part: In a case where expulsion from any school . . . is being processed by the governing board, the school district superintendent or other person designated by the superintendent in writing may extend the suspension until the governing board has rendered a decision in the action. However, an extension may be granted only if the school district superintendent or the superintendent's designee has determined, following a meeting in which the pupil and the pupils parent or guardian are invited to participate, that the presence of the pupil at the school or in an alternative school placement would cause a danger to persons or property or a threat of disrupting the instructional process. (Italics added.)

Relatedly, section 48903, subdivision (a), provides: Except as provided in subdivision (g) of Section 48911 and in Section 48912, the total number of days for which a pupil may be suspended from school shall not exceed 20 [school days] in any school year, unless for purposes of adjustment, a pupil enrolls in or is transferred to another regular school, an opportunity school or class, or a continuation education school or class, in which case the total number of [school days] for which the pupil may be suspended shall not exceed 30 days in any school year. (Italics added.)

^[8] Section 48918, subdivision (b), provides in pertinent part: Written notice of the hearing shall be forwarded to the pupil at least 10 calendar days prior to the date of the hearing. The notice shall include all of the following: [] (1) The date and place of the hearing. [] (2) A statement of the specific facts and charges upon which the proposed expulsion is based. [] (3) A copy of the disciplinary rules of the district that relate to the alleged violation. [] (4) A notice of the parent, guardian, or pupils obligation pursuant to subdivision (b) of Section 48915.1. [] (5) Notice of the opportunity for the pupil or the pupils parent or guardian to appear in person or to be represented by legal counsel or by a nonattorney adviser, to inspect and obtain copies of all documents to be used at the hearing, to confront and question all witnesses who testify at the hearing, to question all other evidence presented, and to present oral and documentary evidence on the pupil's behalf, including witnesses.

Section 48918, subdivision (f), provides in pertinent part: The decision of the governing board to expel a pupil shall be based upon substantial evidence relevant to the charges adduced at the expulsion hearing or hearings. Except as provided in this section, no evidence to expel shall be based solely upon hearsay evidence. The governing board or the hearing officer or administrative panel may, upon a finding that good cause exists, determine that the disclosure of either the identity of a witness or the testimony of that witness at the hearing, or both, would subject the witness to an unreasonable risk of psychological or physical harm. Upon this determination, the testimony of the witness may be presented at the hearing in the form of sworn declarations which shall be examined only by the governing board or the hearing officer or administrative panel. Copies of these sworn declarations, edited to delete the name and identity of the witness, shall be made available to the pupil.

Section 48918, subdivision (g), provides in pertinent part: (g) A record of the hearing shall be made. The record may be maintained by any means, including electronic recording, so long as a reasonably accurate and complete written transcription of the proceedings can be made.

Section 48918, subdivision (h), provides in pertinent part: Technical rules of evidence shall not apply to the hearing, but relevant 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 shall be supported by substantial evidence showing that the pupil committed any of the acts enumerated in Section 48900.

^[9] Because we conclude that MJ was entitled to a hearing pursuant to section 48918, we have no occasion to address MJs contention that he was entitled to a hearing pursuant to the Due Process clause of the federal or state Constitutions. (See John A., supra, 33 Cal.3d at pp. 306-307 [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 plaintiffs 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.].)