Jackson et al v. Oak Grove School District et al

Filing 245

ORDER by Judge Whyte granting 218 219 defendants' motions for summary judgment. (rmwlc2, COURT STAFF) (Filed on 6/20/2013)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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J.J., a minor, by and through his Guardian Ad
Litem, Robert M. Vantress,
Plaintiff,

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ORDER GRANTING DEFENDANTS'
SUMMARY JUDGMENT MOTIONS

vs.

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Case No. C-08-05376 RMW

OAK GROVE SCHOOL DISTRICT, a public
entity school district, et al.,

[Re Docket Nos. 218, 219]

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Defendants.

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J.J.1 brings claims under 28 U.S.C. § 1983 against school officials at Bernal Intermediate

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School ("Bernal") and trustees of the Oak Grove School District ("the District"), in which Bernal

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is located (collectively "Oak Grove Defendants"), arising out of an incident occurring at Bernal.

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J.J. also alleges that Deanna Mouser and her law firm ("Mouser Defendants") violated his rights

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by the advice they gave to the District with respect to action taken against J.J. following the

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incident. J.J. alleges, among other things, that the defendants deprived him of his civil rights

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under the Due Process Clause and Equal Protection Clause of the United States Constitution by

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The court uses initials to refer to plaintiff and other students as they were minors at the time this
lawsuit began.

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failing to provide him with proper notice and a hearing before he was transferred to a different

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school within the District and by unlawfully targeting him based on his race. The defendants

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deny plaintiff's claims and now bring motions for summary judgment.

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I.
A.

BACKGROUND

The Incident
Shortly after school on November 29, 2007, an incident occurred between J.J. and a

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female student, L., on the school campus. Vantress Decl. Ex. 5 (San Jose Police Department

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Report). The defendants claim that J.J. "humped" L.'s buttocks while refusing her pleas to stop.

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Oak Grove Defs.' Br. 3, Dkt. No. 219. J.J. insists he was never behind L. and only gave her a

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hug. Vantress Decl. Ex. 5 at 6 (J.J.'s statement). The incident ended when a teacher, Richard

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Holtermann, came to the scene after hearing L. yell "no," several times. Id. at 4, 5, 7, 8

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(witnesses and victim's statements).

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B.

Initial Investigation
Bernal administrators, district officials, the San Jose Police Department, and a school

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official selected by J.J. all investigated the incident. Vantress Decl. Ex. 6 (Expulsion Hearing

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Report and Recommendation). On November 30, 2007, the day after the incident, Tamara Unck,

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Assistant Principal at Bernal, spoke with Holtermann, and interviewed L., the alleged victim, and

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R., a male student who witnessed the incident. Vantress Decl. Ex. 6 at 17-19. On the same day,

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Katherine Baker, the Principal at Bernal, interviewed L., J.J., and Holtermann. Id. 3-4. She also

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met with J.J.'s mother and J.J. Id. at 4-5. On December 3, 2007, Principal Baker met with J.J.'s

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father and continued her investigation. Id. at 5-8.

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On December 4, 2007, Principal Baker, based upon her investigation and after having

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discussions with other school officials, formally suspended J.J. and completed an Oak Grove

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District Suspension Form recommending that J.J. be expelled. See Vantress Decl. Ex. 1, 48:6-10,

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37:24-25; Vantress Decl. Ex. 8. J.J. was suspended for five days, consisting of: (1) two days of

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in-house suspension, which Principal Baker concluded J.J. had already completed sitting at an

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administrator's office on December 3 and 4 during the investigation, and (2) an additional three

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days of off-campus suspension, which would begin on December 5. Vantress Decl. Ex. 6 at 8.
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Principal Baker also met with J.J.'s mother on December 4 to explain the suspension, the

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suspension form, and her conclusions based on her investigation. Id. at 8-9. J.J.'s mother denied

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that J.J. had done anything wrong and objected to the procedures that the District followed. Id.

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The San Jose Police Department conducted its own investigation and interviewed the

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witnesses on November 29, 2007. Vantress Decl. Ex 5 (Police Report). The police cited J.J. for

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misdemeanor sexual battery on December 4, 2007. Vantress Decl. Ex 5 (Police Citation). The

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police ultimately decided not to bring formal charges. Vantress Decl. Ex. 18.

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C.

Lead-Up to the Expulsion Hearing

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On December 5, 2007, there was another meeting about the incident among J.J.'s mother,

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Principal Baker, a NAACP representative, Superintendent Emmanuel Barbara, and a community

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liaison. Vantress Decl. Ex. 6 at 9. On December 7, J.J.'s mother, J.J., the NAACP representative,

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and district representatives met again to discuss the incident and J.J.'s suspension was extended to

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the date of the expulsion hearing. Id. at 10. On December 14, 2007, the District sent J.J.'s parents

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a letter setting the expulsion hearing for January 10, 2008. Vantress Decl. Ex. 47. On December

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19, 2007, J.J.'s parents and the NAACP representative came to the school to view the location of

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the incident. Vantress Decl. Ex. 6 at 13. Also, on that date, J.J.'s mother requested that the

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District have Joyce Millner, a District employee whom she trusted, conduct an independent

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investigation. Millner began her investigation on December 20, 2007. In the Matter re: J.J.,

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Statement of Findings and Decision, Dkt. No. 121-2, Ex. H at 23. On December 21, 2007,

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Superintendent Barbara had a follow-up meeting with J.J.'s family regarding the incident. Id.

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Shortly thereafter Principal Baker and Assistant Principal Unck prepared administrative

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declarations summarizing their respective investigations and recommending expulsion. Id.; see

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also Vantress Decl. Ex. 6.

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Millner conducted initial interviews of all of the witnesses, but was unable to conduct

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follow-up interviews because of the start of winter vacation. Vantress Decl. Ex 7 (Millner

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Report). Millner's interview notes on the witnesses' statements are largely consistent with their

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other statements and findings by other district personnel. Id.

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D.

Cancellation of Expulsion Proceedings and Administrative Transfer
On December 21, 2007, Superintendent Barbara met with J.J.'s family during which he

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explained that his own conclusion was consistent with the results of the other investigations.

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Barbara Decl. ISO Motion to Strike, Dkt. No. 121 ¶ 13. He described the evidence against J.J. as

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"overwhelming." Id. At the meeting, J.J.'s parents agreed to accept the District's offer to drop the

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expulsion proceeding if J.J. transferred to Herman Intermediate School at the end of winter break.

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Id.

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On January 2, 2008, however, J.J.'s mother notified the superintendent that they were not

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accepting the offer to transfer. Id. at ¶ 14. On January 7, 2007, the District confirmed by phone

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that it was continuing the expulsion hearing from January 10, 2008, to either January 31 or

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February 1 at J.J.'s request. Vantress Decl. Ex. 6 at 42 (letter confirming continuance). The

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District then officially reset the hearing to February 1, 2008. Id.
On January 21, 2008, J.J.'s mother, father, and NAACP representatives met with

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Superintendent Barbara. Vantress Decl. Ex. 24 at 4 (Letter from J.J.'s mother). The parties

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tentatively agreed once again to drop the expulsion hearing and that J.J. would be transferred to

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another school. Id. Shortly thereafter, J.J. and his parents again decided not to accept the

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District's offer. Id. On January 29, 2008, Superintendent Barbara, after further investigation,

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cancelled the expulsion hearing. Barbara Decl. Ex. H at 26, Dkt. No. 121-2. On February 20,

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2008, Superintendent Barbara completed an amended suspension form that only called for

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suspension and not expulsion. Id. at 27. Superintendent Barbara also officially notified J.J. that

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he was being transferred to another school in the district. Id.

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Between December 3, 2007, and March 28, 2008, J.J. was enrolled in independent studies.

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Vantress Decl. Ex. 24 at 4. J.J. finally returned to regular instruction on April 1, 2008, at Herman

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Intermediate School. Barbara Decl. Ex. H at 27, Dkt. No. 121-2.

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E.

Due Process Hearing

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J.J. objected to the transfer and accused the District of falsifying records pertaining to the

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incident and a 2006 suspension. See Barbara Decl. ¶ 22; Vantress Decl. Ex. 32. J.J. requested a

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hearing to challenge his records. Barbara Decl. Ex. B. As a result, the District scheduled a
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hearing on the records request and a due process hearing on the appropriateness of J.J.'s transfer.

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Barbara Decl. Exs. D, H, Dkt. Nos. 121-1. 121-2. J.J. objected to the appropriateness of the due

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process hearing. See Vantress Decl. Exs. 30, 31, 34, 36.

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School Board Trustees Dennis Hawkins, Jeremy Nishihara, Yvonne Cook, Dianne Lemke,

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and Jacquelyn Adams conducted the hearing over three nights in April and May 2008. Attorney

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Adam Fiss of the Littler Mendelson law firm acted as an impartial hearing officer. The Board

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concluded that: (1) the decision to transfer J.J. was appropriate in light of the sexual battery and

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that the procedure Bernal had taken satisfied due process; (2) no racial discrimination had

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occurred; and (3) the District's records relating to both the 2006 and 2007 incidents were accurate.

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Barbara Decl. Ex. H at 37, Dkt. No. 121-2.

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The plaintiffs then filed the instant action.
F.

Procedural History

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J.J., with his parents acting as both his guardian ad litem and his representative, initially

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brought their complaint on November 26, 2008. Comp., Dkt. No. 1. After multiple motions to

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dismiss, the court found that the Oak Grove Defendants in their official capacities were entitled to

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sovereign immunity under the Eleventh Amendment to the extent that J.J. sought retrospective

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monetary or injunctive relief against them. Order 26, Dkt. No. 183. The Court dismissed J.J.'s

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claims for violations of sections 1981, 1985, and 1986 as well as for the Unruh Civil Rights Act.

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Id. at 18-24. Ultimately, the court allowed J.J.'s section 1983 claim against the Oak Grove

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Defendants and the Mouser Defendants to proceed. Order, Dkt. No. 201.

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Presently before the Court are: (1) Oak Grove Defendants' Motion for Summary

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Judgment, Dkt. No. 219; and (2) Mouser Defendants' Motion for Summary Judgment, Dkt. No.

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218. The Mouser Defendants raise evidentiary and procedural objections to J.J.'s papers and also

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join in the substantive arguments made by the Oak Grove Defendants. Mouser Defs.' Br., Dkt.

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No. 218; Objections, Dkt. No. 241.

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II.

ANALYSIS

The issues raised by the summary judgment motions are whether any reasonable jury
could find that the actions of the Oak Grove Defendants and their counsel, the Mouser
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Defendants, after the incident (1) deprived J.J. of his due process right, or (2) violated J.J.'s equal

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protection right by basing its decision on race. Although the court must make all reasonable

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inferences in J.J.'s favor, if there is no genuine issue of material fact the defendants are entitled to

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judgment as a matter of law. Fed. R. Civ. P. 56(a).

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A.

Section 1983 Claims Against Oak Grove Defendants
To establish a claim under section 1983, the plaintiff must show "(1) that a right secured

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by the Constitution or laws of the United States was violated, and (2) that the alleged violation

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was committed by a person acting under the color of State law." Long v. County of Los Angeles,

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442 F.3d 1178, 1185 (9th Cir. 2006). As the operators of public schools, which state law required

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J.J to attend, the Oak Grove Defendants were acting under the color of state law. See W. Virginia

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State Bd. of Educ. v. Barnette, 319 U.S. 624, 638 (1943) ("The Fourteenth Amendment, as now

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applied to the States, protects the citizen against the State itself and all of its creatures—Boards of

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Education not excepted."). Thus, the issue as to the Oak Grove Defendants is whether J.J. has

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raised a triable issue of fact that said defendants violated his constitutional rights.

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The Supreme Court has recognized that state education codes can impart rights to

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students—in particular the right to a free public education—such that deprivation of those rights

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may violate due process. See Goss v. Lopez, 419 U.S. 565, 573-74 (1975). In Goss, the Court

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found that the authority of the state to "prescribe and enforce standards of conduct in its schools"

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is very broad, but "must be exercised consistently with constitutional safeguards." Id. The Court

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acknowledged that "maintaining security and order in the schools requires a certain degree of

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flexibility in school disciplinary procedures." New Jersey v. T.L.O., 469 U.S. 325, 339-40 (1985).

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The court will first consider whether the Oak Grove Defendants violated any of the

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California Education Code sections on which J.J. relies, and if so, whether any such violation was

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arbitrary or wrongful and thus constituted a due process violation. See Zinermon v. Burch, 494

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U.S. 113, 125 (1990). The court will also consider whether the District followed a fair procedure

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complying with due process and if there is any evidence that the District violated J.J.'s equal

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protection rights. See id. Finally, the court will consider qualified immunity.

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1.

J.J.'s Statutory Violation Allegations

J.J. identifies ten alleged rights based on sections of the California Code of Education, 2

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which he claims the Oak Grove Defendants violated. See Opp'n 1-3. He does not challenge the

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constitutionality of any of the Education Code provisions. The court addresses these alleged

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rights below.

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a. Rights 1, 7, & 8: To Attend Home School, to Not Be Transferred from
Home School, and to Return Promptly to Home School after
Suspension

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J.J. claims he had a right to attend his home school, Bernal Middle School; the right not to

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be transferred unless his parents agreed to a transfer or he was found guilty of misconduct

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warranting expulsion; and the right to be returned to his home school once the expulsion

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proceeding was dropped. Opp'n 1-3, Dkt. No. 237. J.J. relies on eight provisions of the

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Education Code for the existence of these rights, Opp'n 1-3, but they are not as extensive as he

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claims. 3 Section 46600 only relates to transfers between districts, not within districts, and J.J.

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was transferred within the Oak Grove School District. Section 48200 gives students the right to

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attend a school in their home district, but not necessarily a "home" school. 4 Section 48900 lists

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the offenses that are grounds for suspension or expulsion. The section does not specifically

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discuss transfers, but gives a superintendent of the school district or principal the authority to "use

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his or her discretion to provide alternatives to suspension or expulsion." § 48900(v). This

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logically includes the authority to transfer a student within the district. Section 48925(b) defines

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expulsion and section 48900.6 provides that the principal or superintended may require

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community service as an alternative to other disciplinary action. Section 48911(e) requires

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All references to sections are to the California Code of Education unless otherwise indicated.
He relies on sections 46600, 48200, 48900, and 48925(b) to support the right to attend his home
school; sections 46600, 48200, 48900, 48900.6, and 48918(e) to support the right to no
administrative transfer without grounds for expulsion; and sections 48911(e), 48918(a) and (e) to
support the right to be returned after expulsion proceedings are dropped. Opp'n 1-3.
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"Each person subject to compulsory full-time education . . . shall attend the public full-time day
school . . . of the school district in which the residency of either the parent or legal guardian is
located." Cal. Educ. Code § 48200 (emphasis added).
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schools to report the suspension of a pupil to the governing board of the district. Section

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48918(a) only relates to the timing for an expulsion hearing and the subsequent decision, which

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J.J. has not challenged. 5 The District did not violate any of these provisions.

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Finally, section 48918(e) defines what should happen to a student whom the District elects

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not to expel after a hearing. This provision does not apply to J.J. because he never had an

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expulsion hearing. Even if it did apply, the District did not violate it. The law requires that a

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student who is not expelled after an expulsion hearing be immediately reinstated in "a classroom

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instructional program," "other instructional program," or a rehabilitation program. § 48918(e)

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(emphasis added). The section does not require that a student be placed back in the same

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educational program or school in which he was enrolled prior to suspension. Id.

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At the time the expulsion hearing was taken off calendar, J.J. was already enrolled in an

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independent instructional program. See Vantress Decl. Ex 13 at 68 (Letter from District to J.J's

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mother); Vantress Decl. Ex. 24 at 4 (Letter from J.J.'s mother to State Board of Education).

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While he was enrolled in the independent study program, Bernal provided him with packets of

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schoolwork, homework, and gave him access to teachers by phone. Vantress Decl. Ex 1, 30:2-6

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(Baker Depo.). The independent study would likely qualify as an "other instructional program." 6

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Furthermore, as best the court can discern, the transfer option, including immediate enrollment at

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a different school within the district, had been available to J.J. since winter break. See Vantress

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Decl. Ex. 13 at 69. Because J.J was in an "instructional program" and had options to return to a

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classroom instructional program, the District did not violate section 48918(e).

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J.J. has not alleged or argued that the defendants violated section 48918(a) by failing to hold the
expulsion hearing within thirty-schooldays and thus the court does not consider that issue. J.J.'s
parents also requested one extension of the expulsion hearing. Vantress Decl. Ex 13 at 69.
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The adequacy of the program is not before this court.

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b. Right 2: No Discipline without Substantial Evidence of Misconduct
J.J. claims he had a right not to be accused or disciplined without "substantial evidence" of

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each element or qualifying offense of misconduct. Opp'n 2. J.J. bases this claim on three

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sections: 48900, 48918(b)(5), 48918(f), and 48922(a). Opp'n 2.
Section 48918(f) requires that the governing board base expulsion recommendations on

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substantial evidence. However, the District did not expel J.J. and thus the section does not apply.

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Even if it did, a reasonable fact-finder could have found substantial evidence because all of the

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witnesses generally agreed about what happened except for J.J. See, e.g., Vantress Decl. Ex 6

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(containing the summaries of Principal Barker, Assistant Principal Unck, and witness statements);

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Ex. 7 (Millner Report). Therefore, the court finds that the Oak Grove Defendants had substantial

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evidenced justifying the actions they took.

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The other cited sections do not help J.J. Section 48900 states that a pupil shall only be

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suspended or recommended for expulsion if the principal or superintendent determines that the

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pupil committed one of an enumerated list of offenses. The District determined that J.J.

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committed some of these offenses based upon extensive investigations. See Barbara Decl. ¶ 18;

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Vantress Decl. Ex 16.
The remaining sections relate to the procedure for expulsion and appeal. See §§

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48918(b)(5), (f) and 48922(a). J.J. was not expelled from the district, and therefore they are

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inapplicable. Even if they did apply during the period in which the District was considering

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expulsion or are deemed to apply to suspension hearings, the Oak Grove Defendants did not

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violate them. Section 48918(b)(5) requires an opportunity for the pupil or the pupil's parents to

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appear, review, and challenge witnesses and testimony at an expulsion hearing. Although the

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District never held an expulsion hearing, 7 J.J.'s parents had numerous opportunities to meet with

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the District to discuss the issues and evidence, as described above. The District informed J.J.'s

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J.J.'s parents also specifically declined to have the expulsion hearing reinstated after the District
canceled it. Vantress Decl. Ex. 13 at 69.

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parents of these rights and the procedure for exercising them in a letter prior to the scheduled date

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of the expulsion hearing. See Vantress Decl. Ex 6 at 40-47.

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c. Rights 3 & 10: Unbiased Determination and Equal Treatment
J.J. claims he had the right to have his guilt or innocence determined by neutral and

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unbiased parties based upon sections 48900, 48918, and 48919. These sections do not directly

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support the alleged right nor did the District violate them. Section 48900, which provides the

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grounds for suspension and expulsion, is discussed above, and the Oak Grove Defendants did not

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violate it. Similarly, section 48918, also discussed above, defines the procedures for an expulsion

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hearing. J.J. has not stated what particular provision the District violated and the court found that

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the District followed the procedure for an expulsion hearing prior to canceling the hearing.

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Finally, section 48919 defines the procedure for appealing an expulsion to the country board of

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education, which is inapplicable.

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d. Right 4: Suspension as a Last Resort
J.J. claims he had the right not to be suspended unless there were no alternative means of

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correction or he posed a danger to others at the school. Opp'n 2 (citing sections 48900, 48900(v),

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48900.5, 48900.6, 48915(b) and (e)). This overstates California law, which only provides that the

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District may use discretion to provide alternatives to suspension or expulsion. § 48900(v).

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As explained before, some of these sections are inapplicable because J.J. was not expelled.

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Even if they all do apply, the District did not violate J.J.’s right because a reasonable official

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could have concluded that other means of correction would fail and that J.J.’s presence caused a

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continuing danger to the physical safety of others. See § 48900.5. J.J. was suspended the year

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before for making obscene sexual gestures in class, suggesting less serious means of correction

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would fail. See Vantress Decl. Ex. 6. Principal Baker concluded that there was a threat of

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physical danger if J.J. returned to Bernal because other students might retaliate against him and

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because J.J.'s "extremely poor judgment and decision making reflected in this incident" made

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another incident more likely. Vantress Decl. Ex. 6 at 15. Assistant Principal Unck agreed that

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J.J. presented a danger. Id. at 20. Superintendent Barbara also met repeatedly with L.’s family,

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and L. feared having J.J. return to campus, suggesting a danger to physical safety. Barbara Decl.

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¶ 19.

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Therefore, to the extent such a right exists, the District did not violate it.

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e. Rights 5 & 6: Five Day Limit on Suspension and Limits on Extensions
J.J. claims he had a right not to be suspended for more than five days, unless the

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suspension was extended pending an expulsion hearing in a meeting with him and his parents

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within five days of the incident and there was substantial evidence that he posed a danger to

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others or to the instructional process. Opp'n 2. J.J. raises three issues: (1) whether the

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suspension-extension meeting was held in time; (2) whether there was evidence that he posed a

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danger or threat of disrupting the instructional process; and (3) whether he was suspended for too

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long.

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First, J.J. argues that the District was required to hold the suspension-extension meeting

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within five days of suspending him. § 48911(a), (g). This would have required a meeting on or

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before December 4, 2007. Opp'n 5 n.5. J.J.'s suspension-extension meeting was held on

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December 7, 2007. 8 The District formally suspended J.J. on December 3, 2007, which means the

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December 7 meeting was held within five days of the suspension. Vantress Decl. Ex. 8.
J.J. argues, however, that the District actually suspended him on November 30, 2007,

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which would mean the suspension-extension meeting was held a day late. 9 The Education Code

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defines suspension as "removal of a pupil from ongoing instruction for adjustment purposes." §

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J.J. also argues that "The hearing was not held until December 7, 2007. [citation.] And there
was no hearing. Just a meeting in which the parents were not told of this purpose, followed by a
letter making false allegations on December 14, 2007." Opp'n 5 n.5. To the extent that J.J.
argues that the December 7th meeting was not a valid suspension-extension meeting pursuant to
section 48911(g), he provides no evidence to support his contention. In contrast, Principal
Baker's expulsion hearing declaration, signed under penalty of perjury, states that she had an over
3-hour meeting with J.J., his mother, and other supporters regarding J.J.'s "suspension, extension
of suspension, and recommended expulsion." Vantress Decl. Ex. 6 at 10. See also, Vantress
Decl. Ex. 43 (December 14, 2007 follow-up letter describing the suspension-extension meeting).
Thus the uncontroverted facts are that a suspension-extension meeting was held on December 7,
2007.
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December 1 and 2, 2007, were weekend days.

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48925(d). Based on the evidence before this court, it is unclear whether J.J.'s removal from class

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on November 30 was a suspension because he was not removed from class until partway through

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the last period of the day. See Vantress Decl. Ex. 6 at 17-18 (Unck Decl.). At that point,

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administrators were still investigating the incident and thus he was most likely removed for

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investigative purposes not "adjustment purposes." However, these facts are in dispute and thus

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the court cannot conclude as a matter of law that the District did not violate the five-day

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requirement for holding a suspension-extension meeting. Nevertheless, as explained below,

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holding the meeting one day late was not a constitutional violation.

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Second, J.J. argues that there was no evidence that he posed a danger or threat of

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disrupting the instructional process. A district may extend a suspension while an expulsion is

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being processed if the principal, after meeting with the parents, determines that the presence of

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the pupil at the school "would cause a danger to persons or property or a threat of disrupting the

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instructional process." § 48911(g). As explained above, a reasonable official could have

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concluded that J.J. presented a threat of physical danger. Principal Baker also concluded that J.J.

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should not be allowed to return because the female victim was fearful of seeing him and his

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presence might disrupt the educational process. The law only requires that the superintendent or

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his designee make a reasonable determination. See § 48911(g). Although J.J. and his parents

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may have disagreed with the District’s decision, the evidence supports the conclusion that the

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District made a reasonable determination.

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Third, J.J argues that his suspension of 122 days exceeded the maximum allowed under

21

the law. See Opp'n 4. A principal may suspend a student for up to a maximum of five

22

consecutive schooldays. § 48911(a). Although J.J. may have been out of school for 122 days, the

23

undisputed facts are that the District did not suspend him for this amount of time. As explained

24

above, the district legally extended J.J.'s suspension through winter break pending the expulsion

25

hearing and after winter break, J.J. was in independent study and had the option to transfer to

26

another school within the district. Therefore, the court finds that the District did not violate the

27

Education Code by suspending J.J. for too many days.

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f. Right 9: Clear Record
J.J. claims the right to have all traces of alleged misconduct excluded from his official file

3

unless he is found guilty of an offense justifying discipline. Opp'n 3. However, section 48900.8

4

cited by J.J. does not contain any provision about corrections or limitations on what may be

5

placed in a student's records. All the section requires is that the appropriate student records note

6

what offenses were committed for notifying parents and reporting to the Department of Education

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on expulsions and suspensions. The District did not violate section 48900.8 in J.J.'s case.

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2.

Constitutional Violations
a. Due Process

10

In Goss, the Supreme Court held that a state law providing for public education for all

11

children created a property interest that the government could not revoke without due process.

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419 U.S. at 573. The Court held that a suspension, even a relatively short one of ten days was an

13

"interference with a protected property interest" such that a student "must be given some kind of

14

notice and afforded some kind of hearing." Id. at 579. The Court noted that a suspension "is a

15

serious event in the life of the suspended child" and that the charges of misconduct underlying the

16

suspension "[i]f sustained and recorded . . . could seriously damage the students' standing with

17

their fellow pupils and their teachers as well as interfere with later opportunities for higher

18

education and employment." Id. at 575. The Court held that due process for a ten-day suspension

19

required that "the student be given oral or written notice of the charges against him and, if he

20

denies them, an explanation of the evidence the authorities have and an opportunity to present his

21

side of the story." Id. at 581. The court concluded by noting that "[l]onger suspensions or

22

expulsions for the remainder of the school term, or permanently, may require more formal

23

procedures." Id. at 584.

24

As explained above, California law only permits a district to suspend a student for more

25

than five consecutive school days if the suspension is extended after a meeting with the parents

26

on the basis that the student presents a danger to others or a threat of disrupting the instructional

27

process if returned to his school or an alternate school. The District's suspension policy required:

28

(1) an informal conference with the student informing the student of the reason for the discipline,
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the evidence, and allowing the student an opportunity to present his version; (2) an attempt to

2

notify the parent via phone or in person; (3) written notice to the parent; (4) a meeting with the

3

parents; and (5) that a suspension not be for more than five consecutive school days except when

4

a student was being considered for expulsion. Vantress Decl. Ex. 6 at 87 (Oak Grove School

5

District 2006-2007 Student Behavior and Parent Information Handbook). Based on all of the

6

available evidence, the District followed these requirements. The extensive investigations and

7

numerous meetings related to the incident described above provided more than adequate due

8

process to J.J.

9

Additionally, J.J.'s forced transfer to another school in the district did not violate due

10

process. See Nevares v. San Marcos Consol. Indep. Sch. Dist., 111 F.3d 25, 27 (5th Cir. 1997)

11

(holding that a transfer alone did not deprive a student of any property interest and thus did not

12

even raise a constitutional issue); Doe v. Bagan, 41 F.3d 571, 576 (10th Cir. 1994) (no due

13

process violation for failing to transfer a student because no authority supporting "the right to a

14

public education encompasses a right to choose one's particular school."); Zamora v. Pomeroy,

15

639 F.2d 662, 669 (10th Cir. 1981) (no deprivation of education and thus no due process violation

16

for transferring student for disciplinary reasons, even to an inferior school); Helena F. v. W.

17

Contra Costa Unified Sch. Dist., 49 Cal. App. 4th 1793, 1800 (1996) (finding no due process

18

violation for assigning students to schools within the district that were not the student's first

19

choice and were not geographically convenient and finding parents' rejection of alternative

20

schools offered to them was irrelevant as far as due process concerned). J.J.'s transfer, standing

21

alone, and all of the school he missed because of his or his parent's decision not to enroll him in

22

one of the offered schools does not implicate a due process issue.

23

Finally, as explained above, the only possible violation of the California Education Code

24

was that the suspension-extension meeting with J.J and his parents may have been held one day

25

late. However, the court has found no case suggesting that a one-day delay in holding a

26

suspension-extension meeting constitutes a due process violation, particularly where the district

27

spent the time leading up to the meeting investigating J.J.'s actions. See, e.g., Vantress Decl. Ex.

28

6 at 3-10. The evidence shows the district provided J.J. extensive due process, meeting with his
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parents and their representatives multiple times as well as interviewing the witnesses multiple

2

times.

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4

b. Equal Protection
"To state a claim under 42 U.S.C. § 1983 for a violation of the Equal Protection Clause of

5

the Fourteenth Amendment a plaintiff must show that the defendants acted with an intent or

6

purpose to discriminate against the plaintiff based upon membership in a protected class." Barren

7

v. Harrington, 152 F.3d 1193, 1194-95 (9th Cir. 1998) (citing Washington v. Davis, 426 U.S.

8

229, 239-40 (1976)). Here, J.J., as an African-American student, has shown he is a member of a

9

protected class, but he fails to raise an issue of material fact suggesting that the defendants

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11

intentionally discriminated against him based upon his race.
J.J. claims the District disciplined him under its zero tolerance policy and that such

12

policies have disproportionate effects on African-American students, which makes the action

13

against him discriminatory. See Opp'n 4; Vantress Decl. Exs. 45 (California Dept. of Ed.

14

statement on zero tolerance policies), Ex. 46 (Harvard report on discriminatory consequences of

15

zero tolerance policies). He argues that the Oak Grove Defendants' "enforcement of its Zero

16

Tolerance Policy ignored the intent of the perpetrator" and that he was not given a second chance.

17

Opp'n 16-17.

18

However, there is no evidence that J.J. was subject to a zero tolerance policy, that the

19

District's implementation of its zero tolerance policy had a discriminatory impact on African

20

Americans, or that the District discriminated against him. Although the District had a zero

21

tolerance policy, the district had discretion in applying it, as demonstrated by this case—J.J. was

22

not expelled and was given a second chance at another school. See also Vantress Decl. Ex. 4

23

(Barbara Depo.) at 62:9-63:3; Ex. 3 (Quon Depo.) 69:18-70:3.

24

In his complaint, J.J. alleged that Principal Baker made an announcement to all students

25

and others publicly over the PA system at Bernal that "a student was molested and the perpetrator

26

was returning because the District caved in." FAC ¶ 58. There is no evidence that Principal

27

Baker made such a comment and the District repeatedly denied it was made. Even if the remark

28

was made, although it may have shown bad judgment, it does not reflect racial animus.
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Finally, multiple authorities investigated the alleged discrimination and all reached the

2

same conclusion: that there was no discrimination. The California Department of Education

3

reviewed an appeal by J.J.'s mother in which she alleged that J.J. was denied an equal education

4

opportunity because of his race. Mouser Decl. ISO Motion to Strike and Dismiss Ex. 1, Dkt. No.

5

109-2, Ex. 1. The Department determined that the documentation did not provide support for the

6

allegation and that the District acted reasonably and appropriately. Id. J.J. appealed this decision

7

to the State Superintendent of Public Instruction who denied the appeal. Id. at Ex. 3. J.J. also

8

sought relief from the U.S. Department of Education, which determined that "the appropriate

9

legal standard was applied" and that the process used by the District and the State of California in

10

reviewing the District's actions meets the U.S. Department of Education Office for Civil Rights

11

standards. Id. at Ex 2.

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Therefore, the court finds no merit to plaintiff's claim of racial bias suggesting an equal
protection violation.
3.

Qualified Immunity

The Oak Grove Defendants claim that if they violated any constitutional right of J.J. by

16

the disciplinary action they took, they are nevertheless entitled to the defense of qualified

17

immunity. Qualified immunity limits the reach of a section 1983 claim. In the court's order of

18

July 14, 2011, dismissing in part J.J.'s first amended complaint, the court explained the standard

19

for the defense:

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27
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Qualified immunity is a defense against liability available to
government officials who perform executive and administrative
functions and who are sued for monetary relief in their personal
capacities. Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). The
doctrine shields public officers from "undue interference with their
duties and potentially disabling threats of liability." Harlow v.
Fitzgerald, 457 U.S. 800, 806 (1982); see also Brosseau v. Haugen,
543 U.S. 194 (2004). To determine whether a public official is
entitled to qualified immunity from § 1983 liability, a court must
consider: (1) whether the plaintiff has identified a specific federal
law or constitutional right that allegedly has been violated; (2)
whether that right was so clearly established as to alert a reasonable
official to its parameters; and (3) whether a reasonable officer could
have believed his or her conduct was lawful. See Sweaney v. Ada
County, 119 F.3d 1385, 1388 (9th Cir. 1997) (citing Newell v.
Sauser, 79 F.3d 115, 117 (9th Cir. 1996)). Where a plaintiff has
established the existence of a "clearly established" right, the
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defendant has the burden of proving that, even if he violated the
plaintiff's constitutional rights, his actions were reasonable. Doe v.
Petaluma City Sch. Dist., 54 F.3d 1447, 1450 (9th Cir. 1995). "[I]n
the specific context of school discipline, . . . a school board member
is not immune from liability for damages under § 1983 if he knew
or reasonably should have known that the action he took within his
sphere of official responsibility would violate the constitutional
rights of the student affected, or if he took the action with the
malicious intention to cause a deprivation of constitutional rights or
other injury to the student." Wood v. Strickland, 420 U.S. 308, 322
(1975).

2
3
4
5
6
7

Order at 21. Students have a legitimate entitlement to a public education as a property interest

8

which is protected by the Due Process Clause and which may not be taken away for misconduct

9

without adherence to the minimum procedures required by that clause. Goss, 419 U.S. at 574.

10

The school's right to enforce standards, however, is very broad. Id. School officials cannot

11

impose discipline for malicious or racial reasons but otherwise the officials have broad discretion.

12

Id.
There is no evidence that any of the Oak Grove Defendants acted with malice or racial

13
14

animus in their handling of J.J.'s case. Even if there had been a constitutional violation, the

15

contours of the right of school officials to impose standards for conduct and discipline are broad

16

and not so clear that a reasonable school official would have understood that the action he or she

17

took in J.J.'s case violated his constitutional rights. See Saucier v. Katz, 533 U.S. 194, 200

18

(2001). The official's mistake, if any, as to what the law required was reasonable. Thus, the Oak

19

Grove Defendants are entitled to the immunity defense. Id. at 205.

20

B.

Other Defenses
The court has found no constitutional violation and that even if there were some evidence

21
22

of a constitutional violation, the Oak Grove Defendants are entitled to qualified immunity.

23

Because these are sufficient grounds for granting summary judgment for defendants, the court

24

does not reach the other defenses raised by defendants.

25
26

C.

Mouser Defendant's Motion
The Mouser Defendants joined in the Oak Grove Defendants' summary judgment motion.

27

They worked for the District as legal advisors. Because J.J.'s claims against the Mouser

28

Defendants are based on what they advised the District to do and because the court has found no
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underlying constitutional violation, the court also finds that the Mouser Defendants did not

2

violate J.J.'s constitutional rights.

3

The Mouser Defendants are also entitled to summary judgment because plaintiff admitted

4

they had no evidence against the Mouser Defendants. Plaintiffs failed to respond to requests for

5

admission served by the Mouser Defendants on May 15, 2012. By failing to respond, the

6

requests are deemed admitted. Fed. R. Civ. P. 36(a)(3).

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8
9

III.

ORDER

For the foregoing reasons, the court GRANTS defendants' motions for summary
judgment.

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Dated: June 20, 2013
Ronald M. Whyte
United States District Court Judge

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