One wintry afternoon, a San Francisco-area attorney called me to ask if she could enlist my expertise for an assault and personal injury case involving a large high school where her teen-aged client had been viciously brutalized. After being assaulted, he forced himself to drive to an urgent care facility where the scope and extent of his injuries were staggering. I felt chill bumps as the attorney explained that her client lapsed in and out of consciousness while driving to seek medical aid. There was no doubt that her client had been a victim of a perpetrator whose intent was to inflict great bodily harm. The attack occurred in the student parking lot. The student-perpetrator arrived half an hour before his unsuspecting student-victim; and he waited patiently for him in a driving rain.
The attorney said her client and the perpetrator had had a number of prior confrontations, none of which had gone beyond hostile verbal exchanges. However, each confrontation showed identifiable signs of escalating beyond the heated words and hurled threats made publicly on the campus quad during lunch and between classes after passing bells. Each time, moreover, campus security guards had intervened, and the principal and other administrators had talked to the boys about their public displays of their animosity and the disruption it was causing. Scores of students were well aware of the boys’ hostile relationship and were often witnesses to their loud and relentless verbal exchanges. Among the student body, rumors were rife of an impending fight between the boys.
Following the brutal assault in the student parking lot, the principal interviewed two witnesses to the assault, took their statements, yet later said that he lost them. Then he and his co-administrators said that no threats of violence or physical acts of violence occurred, and that the student-victim could easily have walked away to prevent such from occurring. Equally curious was the principal’s inability to provide a satisfactory reason why the security guard, who was daily assigned the student parking lot to monitor and patrol, was absent from the lot during the attack; he was elsewhere on the campus. For a couple of years, the local police department had one of its deputies regularly deployed to the high school. Following the attack, he wrote up an incident report; however, like the principal, he mysteriously “lost” it afterwards.
Later that week, the principal summoned both boys to his office and informed them that they were being placed on suspension from school for being “mutual combatants.” The principal’s handling of the assault case and his disregarding abundant a priori signs that the assault itself was a foreseen event, were not supported by either California state law or case law handed down by the U.S. Supreme Court. Indeed, precedent cases of law place in a harsh and disapproving light the principal’s errors and omissions. Controlling my ire at the irresponsibility and dereliction of the principal, I said “yes” when the attorney asked me to take the case as her Expert Witness. There are several issues (enumerated below) at work here, in this most unfortunate case. Yet there are other cases like it throughout the state. The court held this particular school district responsible for the specific physical injuries the victim-student suffered. School officials must recognize and accept their clear-cut and well-defined responsibilities under the law to prevent these kinds of campus hazards and their mandated duty to care for and protect their students.
1. The High School’s Obligation to Protect Students and Prevent Harm
Courts have long recognized that teachers and school administrators must act to control and protect students—even in the absence of a formal rule. Immediate classroom and campus control of student conduct is conferred upon schools under the in loco parentis doctrine, which conduct is put in perspective in an old Wisconsin case:
While the principal or teacher in charge of a public school is subordinate to the school board or board of education of his district or city, and must enforce rules and regulations adopted by the board for the government of the school, and execute all its lawful orders in that behalf, he does not derive all his power and authority in the school and over his pupils from affirmative action of the board. He stands for the time being in loco parentis to his pupils, and because of that relation he must necessarily exercise authority over them in many things concerning which the board may have remained silent. In the school, as in the family, there exists on the part of the pupils the obligations of obedience to lawful commands, subordination, civil deportment, respect for the rights of other pupils and fidelity to duty. These obligations are inherent in any proper school system, and constitute, so to speak, the common law of the school. [State ex rel. Burpee v. Burton, 45 Wis. 150, 30 Am.Rep. 706 (1878) ]
The high school principal and his co-administrators failed their “in loco parentis” obligation by depriving the student parking lot, in which the assault and attack upon the victim-student took place, of a security guard whose presence, according to depositional testimony, was usually daily, regular, and habitual. Equally unacceptable was the principal’s choosing to rationalize away the assault and battery as the conduct of “mutual combatants.” The objective of the school’s administrators ought not to have been to mitigate the severity of the perpetrator’s assault and battery on his victim, or ignore [the facts of] its occurrence at all, but at the very least to exercise due diligence and proceed to find out what could have been done—pre- and post-altercation—in the best interests of the assaulted and injured student.
2. Deprivation of Due Process Rights
“The fundamental requisite of due process of law is the opportunity to be heard,” Grannis v. Ordean, 234 U.S. 385, 394, 34 S.Ct. 779, 783 (1914), a right that the student-victim should have been granted and a requirement that school administrators denied him. This right has “little reality or worth unless one is informed that the matter is pending and can choose for himself whether to...contest.” Mullane v. Central Hanover Trust Co., supra, 339 U.S. at 314, 70 S.Ct. at 657. At the very least, therefore, students in jeopardy of being suspended and the consequential recinsion, loss or withdrawal of a protected property interest (e.g., berth on an athletic team, credits toward graduation, or merit qualifications) must be given some kind of notice and afforded some kind of hearing. “Parties whose rights are to be affected are entitled to be heard; and in order that they may enjoy that right they must first be notified.” Baldwin v. Hale, 1 Wall. 223, 233 (1864).
Suspending the student-perpetrator and the student-victim, under the pretext of “mutual combat,” was tantamount to (1) false arrest; (2) administrators perjuring their previous claims that no threats of violence or physical acts of violence occurred; and (3) deliberate indifference, under which the deprivation of due process rights certainly occurred. In Goss v. Lopez, the Supreme Court of the United States (1975, 419 U.s. 565, 95 S.Ct. 729) ruled that “Temporary suspension requires procedural due process.” The principal attested that he interviewed witnesses; yet his admission that he failed to document and preserve their statements places certain doubt upon the fairness of the administrative actions he felt compelled to initiate against the student-victim. By establishing as law Education Code § 48900, the California State Legislature’s intent has been, and is, to provide for suspensions and expulsions for acts of violence such as fighting, except in cases of self-defense. It must be noted that the student-victim is quoted in the case record as trying to avoid a fight because “I’m on probation.” Unwilling to risk court difficulties by violating his probation, the victim feared to engage in even the allowable act of defending himself. In its denial to the victim of the Fourteenth Amendment protections of due process and, instead, imposing its defective suspension order upon him, the school further injured him.
3. Pre-Meditation and Lying in Wait
Indeed, the perpetrator’s failure to change his mind and disengage from his desire to assault his victim—and instead, to wait outside in the pouring rain for him to appear—is strongly suggestive of the behavior of a perpetrator-student who had a well-formed and deadly plan in mind. Despite inclement weather, he was intent on biding his time and lying in wait to carry out his plan and, with a brutal discipline, see it through. Indeed, his vicious assault on the unsuspecting victim, and the manner and means with which he took total advantage of the hapless boy in the driving rain, has both undertones and overtones of criminal, malicious intent.
4. Duty to Expel
California Education Code § 48900 provides for the suspension and expulsion from school of a student who has “(a)(1) Caused, attempted to cause, or threatened to cause physical injury to another person; or (2) Willfully used force or violence upon the person of another, except in self-defense; (b) Possessed, sold, or otherwise furnished…any dangerous object.”
The principal had a duty to expel the perpetrator. The case record made it clear and convincing that the perpetrator not only attempted to cause physical injury to another person, but actually succeeded in that attempt. Further, that he willfully used force or violence upon his victim is very clear: his resolve was reinforced by his well-conceived and previously-arranged plan. The perpetrator’s throwing his victim upon or against the perpetrator’s girlfriend’s car—such that the car sustained bodily damage—rendered the car itself as the “dangerous object” that the perpetrator “possessed” and used against the victim.
