Metropolitan News-Enterprise


Thursday, February 6, 2020


Page 3


Appeals Court Decides Controversy on Narrow Statutory Ground

Orange County Panel Expresses No View on Whether Youth, Suspended for Three Days, Had Involvement in Racial Incident or Whether Discipline Was Appropriate


By a MetNews Staff Writer


Maurice Possley and his wife, Cathleen Falsani, are seen in a 2009 photo with their adopted son, Vasco Possley. It was at their home that a watermelon was hurled by a student in 2016, resulting in the discipline of all five occupants of the car from which the fruit was ejected. The Court of Appeal has affirmed an order expunging from the school records of one of the occupants the order for a three-day suspension.


Div. Three of the Fourth District Court of Appeal has decided, on narrow grounds, an appeal in an incendiary controversy in Orange County over the expungement of a student’s record of discipline in connection with the hurling of a watermelon at the home of an African American classmate, accompanied by racist taunts.

The opinion, which was not certified for publication, was filed Monday. It repeatedly sets forth what was not being decided.

 Acting Presiding Justice William Bedsworth, whose opinions are typically animated, began:

“We are not experts in educational policy or process. Our state is blessed with people who have developed such expertise and our legislature draws upon their knowledge and wisdom in drawing up laws to govern the education of our youth. The task of our branch of government—and it is plenty—is to apply those laws to the actions of individual students and educators. Then, seeing how the statutory scheme works in an individual case, the legislature can adjust and polish it, each case providing the opportunity for a better system. We view this case as such an opportunity. Otherwise we would kick the water cooler hard enough to break a toe.”

Code Section Ignored

Setting forth how the court is resolving the appeal, he said:

 “Student Doe (Doe) was suspended for having ‘participated’ in a hate crime involving a watermelon thrown at the house of a fellow Laguna Beach High School student who was African-American. Doe denied having participated in the event, but even if he had participated, the evidence was uncontroverted the incident was his first offense. The evidence was also uncontroverted Laguna Beach High School District (the District) never discussed their punishment decision with Doe, and made no effort, as is required by Education Code section 48911, to explain to him why a lesser punishment was not warranted. Because the District’s noncompliance with section 48911 requires us to uphold the trial court’s judgment expunging Doe’s suspension, we do not reach the merits of the trial court’s determination of insufficient evidence he had participated in the crime in the first place, nor do we address the question of whether this was a ‘school-related activity.’ ”

The opinion upholds an order by Orange Superior Court Judge Ronald L. Bauer expunging from Doe’s school record his three-day suspension in 2016, as well as affirming the judge’s order that the district’s appeal not stay the expungement and his denial of attorney fees to Doe.

Student’s Pleading

Doe’s complaint sets forth:

“This case arises out of discipline—a suspension—imposed by the Laguna Beach Unified School District…and its officials on a student for alleged activity that (1) did not occur during school hours, or on campus, or at a school event; (2) did not constitute activity for which suspension could be imposed for a ‘first’ offense; and (3) was for activity that the student did not plan, participate in. or encourage.”

The pleading continues:

“The respondents had already decided not to take any action against the student and told him so, until articles about the related incident appeared in the local media and the community demanded retribution. Then, without any regard for the law or due process, the respondents suspended the student for ‘creating a hostile educational environment’, even though he had been absent all week. The respondents did this in order to be politically correct and to try to appear to the community like the district was taking action, regardless of the legality of the action. In so doing, respondents have caused damage to the student, damage that can only be rectified by a court order to undo the suspension and remove it from the student’s record.”

It was contended that Doe and four other boys set out to unravel toilet paper and strew fruit at the home of a female student on the night of Dec. 27, 2016; they drove there but found the home was too brightly lighted; the driver of the vehicle stopped at the house where an African American classmate lived; over the protest of Doe, who was in the back seat, the watermelon was heaved on the driveway. Another boy uttered a racial epithet as they drove off.

Trial Court Ruling

Bauer granted Doe relief on Dec. 13, 2017. The school district announced it would appeal.

Stu News Laguna, an online publication, quoted Maurice Possley, a former Chicago Tribune reporter who is the father of the taunted child, as saying:

“This is a contemptible decision by this judge. I feel that he took the law into his own hands and made a number of improper and erroneous findings in this decision. While the School District is appealing the case, the reality is that by expunging this student’s record, this judge has effectively eviscerated the school district’s right to discipline its students.

“But even more egregiously, I learned that during earlier arguments, Judge Bauer minimized this incidence of racial hatred by comparing it to David Letterman throwing watermelons off a building, and seemed to take delight in the student’s attorney suggesting in turn that the act was the equivalent of what a comedian, Gallagher, would do, rather than the obscene racist act that it was. There is no comparison.”

The Laguna Beach Unified School District Board of Education’s then-president, Jan Vickers, commented in a statement:

“We understand that there is a tremendous amount of emotion regarding the incident, the decisions made after investigation of the incident, and the subsequent lawsuit. But the decisions of District staff and the Board, from the discipline decision after the investigation through and including the decision to appeal, have been driven by our commitment to our students and our community.”

Bedsworth’s Caution

Bedsworth stressed the opinion’s limited scope, saying:

“We need not try to sort out what happened on December 27, 2016, or whether the District’s actions were unduly harsh, so we emphasize that we make no judgments about those things. All we do is find that there is nothing in the record to show compliance with section 48911.”

He went on to remark:

“We have no idea whether lesser punishment would have been appropriate. The allegations were truly disturbing and suspension might well have been the only reasonable course. That’s why section 48911 exists: to give us non-educators who are reviewing the matter a more complete picture. And to allow that picture to be drawn in a calm, deliberate manner.”

Contentions Rejected

Bedsworth saw no merit in the board’s insistence that Bauer should not have ordered that the expungement proceed notwithstanding the district’s appeal, commenting:

“We are surprised that an educational entity would make this argument at all. The District wholly overlooks the practically terminal stigmatizing effect of a finding of participation in a racial hate crime.”

He did agree with the district, however, that there was no error in denying attorney fees to Doe under the private attorney general doctrine. He explained:

“The trial court was…right to find Doe had not won an important right affecting the public interest in his victory at the trial court. Indeed, his victory today stems from the District’s noncompliance with a statute based on his own unique facts. Doe has won no right at either the trial or appellate level affecting anyone’s interest but his own.”

The case is Doe v. Laguna Beach Unified School District, G055749.


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