of Education Code § 49850 uses these cases and concepts to illustrate what types of conduct is to be protected by that section, there is no indication that the legislature intended to change the way that threats are defined in the State of California. The purpose of § 49850 is to ensure that "a student shall have the same right to exercise his or her right to free speech on campus as he or she enjoys when off campus." § 49850, Historical and Statutory Notes, at subsection (b). The "fighting words" and "clear and present danger" tests were developed to protect First Amendment rights in cases involving the use of words which has the potential of inciting a breach of the peace. See Kaplan, 534 F.2d at 1025. Here, it is not alleged that Sarah Lovell urged her fellow students to violently revolt against the administration of Poway High School to protest the frustrating process of obtaining schedule changes. It would be wrong, therefore, to apply a "clear and present danger" test to determine whether her actions are protected by the First Amendment.
Applying the appropriate tests as stated in United States v. Kelner, and United States v. Orozco-Santillan, the Court finds that the Plaintiff did not make the requisite "threat" required by law, under either contention as to the exact words spoken, to allow infringement on her right of free speech as guaranteed by the Education Code and the United States Constitution. The Court simply did not feel that there was the gravity of purpose and likelihood of execution, nor the intent to harm or assault to allow the imposition of discipline by way of suspension in this case. This decision is based upon the entire factual context in which the disputed statement was made by SARAH LOVELL, including that fact that SARAH LOVELL had spoken with Linda Suokko several other times on the same day regarding the schedule change, and that SARAH LOVELL in no way acted in a physically threatening manner. In addition, the Court takes into consideration the conduct of Linda Suokko after hearing the disputed statement, including the fact that she did not seek immediate assistance, and that she did not speak with anyone else about the alleged threat until almost three hours later. As inappropriate and impatient as SARAH LOVELL's conduct and words appeared to be, the overriding interest in the right of free expression prohibits the penalties imposed by PUSD in this case.
2. Defendants did not violate Plaintiff's rights to due process, including procedural due process, substantive due process, and/or liberty interests.
In Goss v. Lopez, 419 U.S. 565, 42 L. Ed. 2d 725, 95 S. Ct. 729 (1975), the Supreme Court established that minimum due process including notice of the charges and an opportunity to refute them must be provided when a student is suspended for a period of less than 10 days. In answer to the Goss decision, the legislature of California enacted California Education Code §§ 4890, et seq. Education Code §§ 48900 and 48911 are part of a comprehensive legislative scheme designed to ensure procedural fairness in suspension proceedings. Tirpak v. Los Angeles Unified Sch. Dist., 187 Cal. App. 3d 639, 232 Cal. Rptr. 61, 64 (Cal. Ct. App. 1986).
Based upon the findings that Mary Heath had the requisite authority in compliance with Education Code § 48911(i) and that the school provided a meeting with the parents as required by § 48914 of the Education Code, the Court finds that the Plaintiff had the requisite notice and opportunity to be heard with regard to the suspension, prior to the suspension being implemented in this action. While other actions and activities took place with regard to the wording of the STUDENT OFFICE REFERRAL (Exhibit 4) and the clarification of said wording, the process and procedures are outside the scope of the dispute in issue, which, focused upon the imposition of the discipline specifically for Plaintiff's speech.
3. Plaintiff was not required to exhaust any administrative remedies in order to pursue her claims under Education Code § 48950 and/or 42 USC § 1983.
Neither Education Code § 48950 nor 42 USC § 1983 require administrative procedure as a condition precedent to an action or the jurisdiction of the U.S. District Court in these regards. No authority was cited nor any located with regard to any administrative process in this regard. Assuming, for the sake of argument, that administrative action was required, the hearing with the counselor occurring on February 4, 1993, the subsequent meeting involving the parents (with Mr. Lovell on the phone) the written letter by the Lovells dated February 10, 1993 and the meeting with the principal, including counsel for the Lovells on February 16, 1994 would certainly seem to be substantial compliance with any reasonable administrative process.
4. Plaintiff is entitled to recover attorneys fees and costs for prevailing as to the violation of the right of free speech.
A prevailing party, other than the United States, under 42 U.S.C. § 1983 may be awarded reasonable attorney fees as part of costs pursuant to 42 U.S.C. § 1988. The Supreme Court discussed the standards for awarding attorneys fees under § 1988 in Hensley v. Eckerhart, 461 U.S. 424, 76 L. Ed. 2d 40, 103 S. Ct. 1933 (1983). The Court clarified:
The purpose of § 1988 is to ensure "effective access to the judicial process" for persons with civil rights grievances. Accordingly, a prevailing plaintiff "should ordinarily recover an attorney's fee unless special circumstances would render such an award unjust."
461 U.S. at 429 (citations omitted).
"A prevailing party is one who has succeeded on any significant claim affording it some of the relief sought, either pendente lite or at the conclusion of the litigation." Texas State Teachers Assn. v. Garland Indep. Sch. Dist., 489 U.S. 782 at 791, 103 L. Ed. 2d 866, 109 S. Ct. 1486 (1989). Where, as here, a plaintiff prevails on only one of several claims, the inquiry is whether there has been a material alteration of the legal relationship of the parties in a manner which Congress sought to promote" by the passage of § 1988. Id. at 792. If so, the plaintiff's overall success goes to the reasonableness of the amount of attorney fees awarded, but not to the entitlement to such an award. Because the Plaintiff here has succeeded on her free speech claim, and because there are no special circumstances which would render such an award unjust, Plaintiff is entitled to attorneys fees under § 1988.
Education Code § 48950 also allows a prevailing plaintiff fees in an action of this type. Those fees are within the discretion of the court. Here, having ordered fees under 42 USC § 1988, there is no need to consider the application of the Education Code in this specific regard.
By contrast to the standard for awarding attorneys fees to prevailing plaintiffs under 42 U.S.C. § 1988, "[a] prevailing defendant may recover an attorney's fee only where the suit was 'vexatious, frivolous, or brought to harass or embarrass' the defendant. Hensley, 461 U.S. at 429 (citations omitted). Despite the fact that defendants prevailed on the due process claim, the Court did not find that the Plaintiff's action relative to due process was vexatious, frivolous, or brought to harass or embarrass the defendants. As a result, prevailing law prevents an award of fees to defendants in this action.
In this action, the Plaintiff's attorneys fees and costs should be limited, as far as practicable, to the case with regard to the free speech violation. Since Plaintiff did not prevail with regard to the due process claim, fees and costs in that respect are not awardable.
WHEREFORE, judgment is ordered to be entered in favor of the Plaintiff and against Defendants on the grounds and bases stated herein. Counsel for Plaintiff is to prepare the Judgement.
Hon. ANTHONY J. BATTAGLIA
United States Magistrate Judge
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