JOHN A., a Minor, etc., Plaintiff and Appellant, v. SAN BERNARDINO CITY UNIFIED SCHOOL DISTRICT et al., Defendants and Respondents, 33 Cal. 3d 301

Opinion BROUSSARD, J. Plaintiff appeals from a judgment denying petition for writ of mandate to compel readmission to high school. After a high school freshman football game, an altercation involving a number of the players erupted on the San Bernardino High School campus. No teachers, coaches or other school officials witnessed the incident. The mother of a team member informed the school administration that her son and another boy had been assaulted and injured during the fight. Vice Principal Fitzgerald was assigned to investigate the incident.

He obtained signed statements from eight students who were allegedly involved in the altercation, including plaintiff, then a fourteen-year-old freshman. Plaintiff was suspended from school for his alleged participation in the fight and notice of the suspension was sent to his mother. The school principal recommended plaintiff be expelled, and the district superintendent’s office informed plaintiff’s mother by letter that a hearing had been scheduled on the question of plaintiff’s expulsion for assaulting and injuring two students without provocation.

The letter also informed plaintiff and his mother that they would have an “opportunity to participate in the discussion of his case,” that they could “present evidence, both oral and documentary,” and that they might be accompanied by a friend or advisor or, if they desired, might “employ and be represented by counsel.” Enclosed with the letter was a copy of the school district’s rules on student discipline which contained a recital of the matters required to be included in a notice of an expulsion hearing.

The three-member hearing panel was composed of certificated employees of the district who were not employed at the high school attended by plaintiff. Plaintiff, his mother, and Vice Principal Fitzgerald were in attendance at the hearing. The chairperson of the hearing panel opened the proceedings by telling plaintiff and his mother that the purpose of the hearing was to afford them the opportunity to hear the charges and the information gathered by the school staff, the chance to refute or add to that information, and to make statements on plaintiff’s behalf.

The chairperson then read into the record a letter from the high school principal to the district superintendent recommending plaintiff’s expulsion for the alleged assaults, Mr. Fitzgerald’s written report of his investigation, and the signed statements. The chairperson then turned to plaintiff and asked: “What exactly happened that day after the football game?” After a one-sentence answer, plaintiff was thereafter questioned by panel members concerning the incident, his attendance record and an incident in which he was reported to have hit another student in class.

Neither the two injured boys nor any of the other witnesses to the fracas testified, and there was no showing that they were unwilling to testify or that by testifying they would subject themselves to a substantial risk of harm. In the statements which Mr. Fitzgerald obtained from the students, each gave a somewhat different version of the incident; six, however, said that plaintiff had either struck or kicked the two boys who were allegedly injured.

The two boys and several other witnesses said that plaintiff and several others chased the injured boys and caught them, and plaintiff and another boy started hitting the two injured boys. Other students broke up the fight, and the police were called. Plaintiff, both in his statement to Mr. Fitzgerald and at the hearing, maintained that he neither struck nor kicked the boys. He did admit holding one of them. He characterized the entire incident as “play boxing” such as often took place after football practice or games.

In response to questions from the panel, plaintiff insisted that the incident had not been racially motivated; he denied he had yelled, “White boy” or chased the two boys at the beginning of the melee. He also felt that the two boys could not have been injured because they attended and took

part in football practice the following Monday. Vice Principal Fitzgerald stated that at the time he conducted the investigation the boys “didn’t have any obvious injuries,” but that from the statements they made he was of the view that they were “in pain, at the time of the fight.” Plaintiff’s mother told the panel that plaintiff had never been in serious trouble before. The hearing panel found that plaintiff along with another student “took

part in an unprovoked attack on two students” and recommended that plaintiff be expelled for the remainder of the school year (circa six and one-half months); it also recommended that he be readmitted earlier “upon receipt of a letter from a licensed therapist indicating satisfactory involvement in a counseling program.” The school board adopted the hearing panel’s recommendation and ordered plaintiff expelled for the remainder of die school year. Plaintiff appealed the expulsion to the county board of education, but the board, after hearing, affirmed the school board’s decision.

Plaintiff filed a petition for mandamus claiming he was denied procedural due process before the administrative hearing panel. In the course of the hearing, the trial court, over plaintiff’s objection, permitted the district to file approximately 30 declarations from district school administrators.

The declarations were to the effect that it was essential to the safety and welfare of students that schools be able to discipline students without subjecting their accusers to confrontation and cross-examination because otherwise fear of retaliation would make students reluctant to give information on disciplinary matters. The administrators recited instances where there had been threats of retaliation and retaliation against student witnesses by accused students and their friends and where witnesses changed schools to avoid harassment.

The court decided that plaintiff’s administrative hearing had been fair and after exercising its independent judgment on the evidence determined that the hearing panel’s findings were supported by the weight of the evidence. The court made findings of fact and conclusions of law accordingly and entered judgment denying the petition for writ of mandate. Plaintiff appeals from the judgment. Plaintiff contends that he had a right to confront and cross-examine the witnesses to the altercation and that deprivation of that right rendered his expulsion invalid.

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 plaintiff’s 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. The district preliminarily urges that plaintiff’s readmission to school has rendered this appeal moot.

Even if that were so, this case comes within the well-recognized qualification to the general rule that where, as here, the appeal presents questions of continuing public interest that are likely to recur, resolution of those issues is appropriate. (Marin County Bd. of Realtors, Inc. v. Palsson (1976) 16 Cal.3d 920, 929 [130 Cal.Rptr. 1, 549 P.2d 833]; Green v. Layton (1975) 14 Cal.3d 922, 925 [123 Cal.Rptr. 97, 538 P.2d 225]; Eye Dog Foundation v.

State Board of Guide Dogs for the Blind (1967) 67 Cal.2d 536, 542 [63 Cal.Rptr. 21, 432 P.2d 717].) What process is due a student facing expulsion from a public school is a matter of continuing importance to children in the public school system, school boards, and school administrators. The power to expel for misconduct is not placed in the school’s administrative officials but in the governing board. The principal recommends expulsion (§ 48904.5), and thereafter a hearing is held by the board, a hearing officer or an impartial administrative panel of district employees.

If a hearing officer or administrative panel hears the matter, findings of fact must be made, and the officer or panel makes recommendations to the board. (§ 48914.)

Section 48914, subdivision (

b) provides for confrontation and cross-examination of witnesses “who testify at the hearing.” Subdivision (

f) of the

section provides: “Technical rules of evidence shall not apply to such hearing, but 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 must be supported by a preponderance of the evidence.” The requirement that the board’s decision to expel be supported by a preponderance of the evidence establishes that the burden is on the school district to establish cause for expulsion. The requirement of subdivision (

f) that evidence may be 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 establishes the standard to be applied in assessing the weight to be given the evidence. While reasonable persons often rely on statements and reports (Cal.

Administrative Agency Practice (Cont.Ed.Bar 1970) Hearing Procedure, § 3.22, pp. 155-156), a reasonable person in the conduct of serious affairs will not rely solely on written statements but will demand that witnesses be produced so that their credibility may be tested and their testimony weighed against conflicting evidence when their testimony appears readily available and there is no substantial reason why their testimony may not be produced.

By placing the power of expulsion in the governing board rather than the administrators, the Legislature has manifested its intent that the board not merely review the administrator’s decision but determine credibility and weigh evidence. It may not rely on administrative reports when evidence is conflicting and witnesses are readily available. In the circumstances of the instant case, the evidence fails to meet the statutory requirement. The evidence at the hearing was in sharp dispute. Plaintiff testified in accordance with his statement to the vice principal that he did not strike or kick the two injured boys.

No other witness to the altercation testified. Rather, the school district relies upon the vice principal’s report and some of the written statements by witnesses. There is no showing that the witnesses were unavailable or of any substantial reason precluding their testimony. We are aware that in some cases revelation of student witnesses’ names and requiring the students to testify may subject them to a substantial risk of retaliation. In such a case the witnesses are not readily available.

We do not preclude the board from relying upon statements and reports where it finds that disclosure of identity and producing the witnesses would subject the informant to significant and specific risk of harm. (Cf. Morrissey v. Brewer (1972) 408 U.S. 471, 487 [33 L.Ed.2d 484, 497, 92 S.Ct. 2593]; People v. Winson (1981) 29 Cal.3d 711, 716 et seq. [175 Cal.Rptr. 621, 631 P.2d 55].) While the risk of retaliation may be substantial in some cases, it does not warrant board reliance on reports in all cases or in the instant case where there is no showing or finding of a significant and specific risk of harm.

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. Plaintiff also contends that he was denied his constitutional right to a decision by an impartial factfinder because the hearing panel was composed of district employees.

Section 48914, subdivision (d), provides that the hearing may be conducted by “an impartial administrative panel of three or more certificated employees of the district, none of whom shall be on the staff of the school in which the pupil is enrolled,” and this procedure was followed. Plaintiff argues that teachers have a built-in bias in disciplinary matters against students, preventing them from rendering a fair decision. This court recently addressed a claim of biased hearing officer in Andrews v. Agricultural Labor Relations Bd. (1981) 28 Cal.3d 781 [171 Cal.Rptr. 590, 623 P.2d 151].

A temporary administrative law officer was hearing unfair labor practice charges against agricultural employers, and they attempted to disqualify on the ground that his law firm regularly represented Spanish-surnamed persons and farm workers against agricultural employers and that he personally represented Spanish-surnamed persons in a claim of employment discrimination. It was held that the administrative law officer did not err in refusing to disqualify himself.

The court recognized that the “right to an impartial trier of fact is not synonymous with the claimed right to a trier completely indifferent to the general subject matter of the claim before him,” that the concept of bias refers to a mental attitude or disposition towards a party to the proceedings, that bias in the sense of crystallized point of view about issues of law or policy “is almost universally deemed no ground for disqualification,” and that if bias and partiality are defined to mean the total absence of preconceptions in the mind of the judge “ ‘no one has ever had a fair trial and no one ever will’ ” because all have attitudes which affect them in judging situations. (28 Cal.3d at pp. 790-791.) Even if we were to assume that most teachers have general views as to student discipline adverse to the student—a matter by no means clear—such would not furnish a ground for disqualification.

The determination whether to seek hearing officers closely attuned to current educational processes rather than persons not involved in those processes presents a question for the legislative agencies, and their determination to permit teachers to serve on the hearing panel does not result in a denial of due process. Plaintiff also urges that the panel’s questioning showed bias, but we have examined the record and it fully supports the trial court finding that the hearing was conducted in a fair and impartial manner.

Plaintiff claims that because he was indigent and unable to “employ” counsel, the notice of hearing should have informed him that free legal assistance would be available to him through local legal aid offices. Apparently free legal services were available to indigent students in the San Bernardino area, and plaintiff asserts that the school district was aware of the availability of free services. In accordance with

section 48914, subdivision (b), the notice provided that plaintiff could be accompanied by a friend or advisor or employ or be represented by counsel. The notice was sufficient. The availability of free legal services for indigents varies throughout the state, and even in areas where services are available, they may be available in school expulsion cases only on a case-by-case basis, depending upon other burdens assumed by law firms providing services to indigents.

Without knowing what matters plaintiff would seek to assert at the hearing, the district was not in a position to determine the availability of free services to plaintiff. The judgment is reversed with directions to the trial court to issue a peremptory writ of mandate commanding the school district to expunge plaintiff’s expulsion from his record. Compton, J., concurred. Bird, C. J., and Kaus, J., concurred in the result. All

section references in this opinion are to the Education Code unless otherwise indicated.

Section 48904.5 provides that a principal may recommend a pupil for expulsion for any of the acts specified in

section 48900 which includes: “(

c) Caused, attempted to cause, or threatened to cause physical injury to another person . . . .”

Section 48914, subdivision (b), provides: “(

b) Written notice of the hearing shall be forwarded to the pupil and the pupil’s parent or guardian at least 10 days prior to the date of the hearing. Such notice shall include: the date and place of the hearing, a statement of the specific facts and charges upon which the proposed expulsion is based, a copy of all the rules of the district which pertain to discipline adopted pursuant to

Section 35291, and the opportunity of the pupil or the pupil’s parent or guardian to: appear in person or to employ or be represented by counsel, inspect and obtain copies of all documents to be used at the hearing, confront and question all witnesses who testify at the hearing, question all other evidence presented, and present oral and documentary evidence on the pupil’s behalf, including witnesses.”

Section 48914, subdivision (d), provides that the hearing may be conducted by the governing board, “county hearing officer,” a hearing officer from the Office of Administrative Hearings, or the board “may appoint an impartial administrative panel of three or more certificated employees of the district, none of whom shall be on the staff of the school in which the pupil is enrolled.” The principal’s letter to the district superintendent also stated that plaintiff had been counselled on two prior occasions for attendance problems and an earlier incident in which he struck another student in class.

The trial judge stated that he thought the declarations should “be a part of the record,” but did not think they had any probative value in plaintiff’s case. Plaintiff contends that the court erred in permitting the declarations to be introduced into evidence because the district failed to satisfy the requirements of Code of Civil Procedure

section 1094.5, subdivision (e). In view of our disposition of this appeal on another ground, it is unnecessary for us to decide this issue. Assigned by the Chairperson of the Judicial Council.