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March 25, 1994

MARTIN PADILLA, JR., A Minor, by Darlene Padilla, his natural parent and next friend, Plaintiff
GOVERNING BOARD OF THE GROSSMONT UNION HIGH SCHOOL DISTRICT, JO ANN SMITH, individually & in her official capacity as Superintendent of the Grossmont Union High School District; and ARTHUR PEGAS, individually & in his official capacity as Principal of the El Capitan High School, Defendants. GROSSMONT UNION HIGH SCHOOL DISTRICT, Counter-Claimant v. MARTIN PADILLA, JR., a Minor, and DARLENE PADILLA, His Natural Parent, and DOES 1 through 10, Inclusive, Counter-Defendants

The opinion of the court was delivered by: JUDITH N. KEEP

[EDITOR'S NOTE: The Text of this Opinion is as it was issued by the Court. The text appearing in the reporter at 858 F. Supp. 1044 differs.]


 THE COURT: I have to tell you that I find this case probably one of the most troubling cases that I've ever had. I appreciate the hard work that both of you have done and -- but it's very troubling to me.

 I also have to tell you that I find the Hacienda case very troublesome. I don't -- I'm not ruling under whole cloth. I have to rely on the state of the law as it's been given. There is a judicial pecking order and I am at the bottom of the list. I must follow the Supreme Court and the Ninth Circuit.

 But I say it's troubling because I do not and categorically would say on this record that I do not feel that there's a colorable claim that he is suffering from an attention deficit disorder. He very well may be; that's another issue. But based upon the record that's been submitted, the way this whole issue arose, his grades, his whole history at the school, the lack of any injuries that might have accounted for any problems or any concern by the parents that were expressed, anything, relying on the psychiatrist's test -- or the psychologist's test but only in part because he did not say that that did in fact show that he was suffering from attention deficit disorder. He said there were some things in the test results that would indicate so, therefore, he reviewed the entire record and concluded that he was not.

 I'm concerned at the way that the case came up. It came up after the school disciplined him from bringing a gun on to the school. Realistically, although I agree that there's got to be concern of an individual's rights, I think that we are putting the school system in a situation now whereby they have got to be able to discipline and saying just disciplining when there's a clear and present danger of violence is not enough. I think that parents would be shocked to think that classmates of their children can bring the guns to school and then you can be stuck in a log jam like this with no way for some speedy action by a school to take discipline and remove a student from the school, provide some alternative schooling for him or her, but remove them from a school pending the resolution of the hearing unless some -- some threshold standard -- threshold burden of proof were met by the student that indeed he or she did have some disorder that would put him or her under the provisions of the Individuals with Disabilities Act.

 I make these preliminary comments in this ruling because, frankly, I think that -- I don't know whether Mr. -- the juvenile in this particular case does or does not have a disability. And, clearly, I agree with you that he has a right to have that ultimately decided by a neutral arbiter who will evaluate the evidence and rule upon it. But I do find it very troubling that there can be this sequence of events that were present in this case -- the whole issue of the gun and then the action being taken and all of a sudden, according to the school's papers, there was a claim that if they expelled him, there would be a lawsuit because of discrimination against a native American. Then when they didn't blink on that, then there was the Individuals with Disabilities Act claim and the provisions there.

 I don't condone you for taking those steps because certainly you are representing the minor in this case and he has a right to have all of his rights protected in -- and to have all the steps taken and I think, Mr. Cohen, you've done a wonderful job on that. I think that what I am doing before I issue my final ruling on this is expressing tremendous frustration because, in the abstract, I think that this ruling -- that this state of the law is such that a wonderfully noble act -- the Individuals with Disabilities Act -- can be used as a manipulative tool to undercut a school's ability to discipline students and, frankly, I think that these are the kind of situations that can cause parents, if they have any money whatsoever, to remove their children from a public school and put the child in a private school or a religious school where they feel that the school can act so that the students aren't exposed to weapons and -- or just violent or aggressive or harassing conduct of other students.

 And I think that we all as concerned citizens have to fear that if this trend continues, the schools are going to end up dumping grounds. They're going to be dumping grounds for all of the persons who can't -- don't have the resources to get out and for the discipline problems, and the public schools are going to be asked to take care of those, whereas the private schools and religious institutions will take the other students and for a fee be educating them.

 I am flailing on because I personally think that there's wonderful motives behind the Individuals with Disabilities Act. There's wonderful goals and requirements of the California statutes that have been relied upon, but the bottom line is is that at the current state of the law, where I find myself is, based upon the Hacienda decision, in a position whereby at least insofar as this first phase of the TRO for the Plaintiff, I would have to grant it even though, as I say, I am -- I do not find that there is a colorable claim that this student does come within the Individuals with Disabilities Act. He may but he has not submitted evidence, whether on his own or just the way that I interpret the data that's been suggested that would say that there is in fact a colorable claim.

 And yet, because of the Hacienda decision, I feel that my hands are tied and I have to basically grant the temporary restraining order pending resolution of the violence issue, so we'll have to get to that particular issue.

 I basically have talked about the fact that according to the facts, the student did bring this pellet gun on to the school, parked the gun (sic) in the parking lot. It was the family's vehicle. It -- allegedly, the Plaintiff used the pellet gun the night before for shooting squirrels. The security officer observed the gun, confronted Plaintiff. Plaintiff attempted to elicit the assistance of a second student to hide the gun. The school official told Plaintiff not to give the keys to any other person. Allegedly, the Plaintiff was able to surreptitiously give his keys to a third student. This student then removed the gun.

 The Plaintiff was taken to the office of the vice principal. He denied bringing the gun to school. Apparently -- and this is a little unclear -- but apparently, thereafter, he did return to the parking lot, having then been in a position where he admitted that he brought it on, but it was an accident and he didn't mean to. The gun was no longer in the car, so the Plaintiff then lied again, saying that the gun must have been stolen from a vehicle.

 The Sheriff's Department was called. Finally, by being interviewed by the Sheriff's Department, the Plaintiff admitted giving the keys to a student and instructing that student to remove the gun from the vehicle and from the school ground.

 The Plaintiff was suspended, pursuant to the California Education Code, 48915(b), which states that, in part:


"A principal shall immediately suspend any pupil found to be in possession of a firearm at school."

 According to the records that I have, at that time there's never been any suggestion Plaintiff was disabled beyond the fact he was legally blind in one eye, not two.

 On February 24th, a meeting was held between Plaintiff, his father, his attorney, vice principal. Plaintiff was informed his suspension would be extended pending the expulsion hearing.

 Defendant states in their papers at that time there was no suggestion of disability. On February 25th, Plaintiff requested the evaluation for special education needs, testing, and evaluation was conducted February 26th and March 2nd.

 On March 3rd, an individual education plan meeting was held. At that meeting, the Defendant's agents found Plaintiff was not eligible for special education under the Individuals with Disabilities Act and Plaintiff objected.

 On or about March 4th, Plaintiff requested a due process hearing to review the findings of the individual education plan, informed the Defendant under the Individuals with Disabilities Education Act Defendant was not permitted to remove Plaintiff from his regular educational placement pending the outcome of the hearing.

 On March 7th, Plaintiff attempted to return to school. He was sent home and informed Defendant did not intend to admit him during the pendency of the Individuals with Disabilities Education Act proceedings.

 On March 8th, Plaintiff filed the request for a temporary restraining order. I basically continued the hearing -- or denied the request for an ex parte review, wanting to give the school an opportunity to respond, and thus we have the hearing today.

 Basically, Defendant claims Plaintiff is too dangerous to be allowed to return to school and requests if I find Plaintiff is entitled to return pursuant to the IDEA, I exercise my authority to block the return.

 The violence issue came up basically as an alternative ground for the school board's -- or the school district's actions and Plaintiff did file some papers this morning in response thereto, but I basically wanted to rule on the first issue because the violence issue is irrelevant before the second and, frankly, I've been tied up all morning in another hearing and did not have a chance to read those papers, in any event.

 Concerning the present gun incident, the Defendant notes that the Plaintiff admitted he previously brought the gun to school at least one time, but had not been caught.

 The Defendant notes that despite being directly told not to give his keys to another student, the plaintiff did give them to that student and then conspired to have the gun removed from school property and lied about his actions.

 The Defendant points out that in Plaintiff's three and a half years at El Capitan, he has received 16 referrals for discipline, including knocking over a bookcase and refused to clean up the mess, a suspension for fighting, a clay-throwing incident in '93, and insubordination to a substitute teacher in '94.

 The Defendant contends that, given this history of impulsive and violent actions and his admission he brought the gun to school at least on two occasions, Plaintiff is too dangerous to continue at the school.

 The Individuals with Disabilities Act is an elaborate procedural mechanism intended to ensure disabled children receive an appropriate education. Addis Corris (ph), 20 USC 1415(e)(3) which provides in part that:


"During the pendency of any proceedings conducted pursuant to this section, unless the state or local education agency and the parents or guardian otherwise agree, the child shall remain in the current educational placement."

 Plaintiff contends under this section he cannot be expelled during the pendency of the review. I do hold that I have jurisdiction pursuant to 1415(b)(2). There was some initial language in the cases that provided -- suggested there had to be exhaustive administrative remedies, but that has been clarified as not a prerequisite. See Doe by Gonzalez v. Mayer, 793 F.2d 1470, 1490.

 The Ninth Circuit has noted that:


"Although most courts require plaintiff to exhaust his or her administrative remedies, courts will not enforce this rule where administrative relief would be futile or inadequate."

 And so, presumably in this particular case, given the time frame that would be required to exhaust, the Court should go in since we're in the middle of a school semester.

 Plaintiff -- the administrative relief would be completed probably after the school year is completed, so I therefore hold that I must rule.

 It appears that the stay-put provision of the Individuals with Disabilities Act prevents Defendant from expelling Plaintiff during the pendency of the appeal. The language of this section states:


"The child shall remain in the current educational placement."

 There are two objections to this conclusion. Defendant argues that Plaintiff's claim that he's disabled is a ruse.

 Second, given the potential for violence, it could be argued that the state procedure should not apply.

 I rely on Hacienda-La Puente School District of L.A. v. Honig, 976 F.2d 487, whereby the Ninth Circuit expressly rejected the contention of the protection of the Individuals with Disabilities Act only applied to children who had previously been determined to have disabilities. The court stated:


"In enacting IDEA, Congress specifically recognized undetected disabilities prevent many children from having a successful educational experience. If we found that issues concerning the detection of disabilities to be outside of the scope of IDEA, due process here in school districts could easily circumvent the statute's strictures by refusing to identify students so disabled."

 Given that decision, I hold it's clear that the procedural safeguards of the Individuals with Disabilities Act must be applied, regardless of whether or not the child has been previously diagnosed as having disabilities.

 As I indicated in my comments at the beginning of this ruling, I really feel that that's unwise, that there should be some colorable claim requirement that doesn't have to just depend on the school's action. It can also depend -- be brought up by some other means to the Court. But it is very clear whether in this case the minor is or is not -- is or is not manipulating the statute, the statute as currently interpreted is subject to great manipulation.

 Given the broad purposes of the IDEA, it's not surprising it's intended to reach all disabled children. Clearly, a child who suffers a sudden debilitating mental problem or emotional problem deserves the protection of the Act, regardless of whether or not he or she previously had such a condition. But the Act itself does not address the question of how the determination of whether a child should be -- of whether a child is disabled should be made, but the Hacienda decision, of course, seems to be perfectly clear that however you're going to do it, until the decision is made, the child must stay put.

 So, therefore, based upon that decision, I do in fact find that I must grant the temporary restraining order unless the child meets the violence exception to the stay-put provision of Honig v. Doe, 484 U.S. 305, 108 S. Ct. 592, 98 L. Ed. 2d 686.

 As I indicated, there has been as an alternative position granted -- or brought up before the court the issue of whether this particular minor is violent and, therefore, comes within the Honig v. Doe exception. I do feel -- and at the start of this ruling I laid out some of the acts that the -- that the school board complained about -- that a colorable claim has been raised as to whether or not there is a Honig v. Doe exception. If there is not, then of course he must go back to the school. So the only thing I'm saying to you is: I have got to read those papers and then let you have some kind of a brief argument on that matter before I can finally resolve that violence issue.


 But the statutory interpretation aside, on Wednesday, March 16th, 1994, I ruled upon Plaintiff's request for a temporary restraining order. The facts are set forth in that ruling. I incorporate it by reference.

 At the earlier hearing, I held that 20 USC 1415(e)(3), the so-called stay-put provision of the Individuals with Disabilities Act, acted to prevent the Defendant school from unilaterally excluding the Plaintiff from school.

 Although I granted Plaintiff's request for a TRO, I also stayed the issuance of that order pending resolution of the Defendant's countering TRO. Defendant filed its own TRO requesting that if I found the Defendant could not unilaterally exclude the Plaintiff, that I myself could then enjoin the Plaintiff from attending school. The basis for Defendant's request is that it claims the Plaintiff is too dangerous to be permitted to return to school.

 I examine first the basis for my jurisdiction.

 At the heart of the matter is Honig v. Doe, 484 U.S. 305, 108 S. Ct. 592, 98 L. Ed. 2d 686. Now, I want to state categorically for the record that I disagree with the comments that Plaintiff's counsel made about that case on Wednesday. And before essentially stating what I believe that case said, I wanted to read it again before today's hearing. But in the Honig case, the Supreme Court held that:


"A school may not unilaterally exclude a student from attending school because of the student's dangerousness."

 The court held that the stay-put provision of the Individuals with Disabilities Act did not have a violence exception that would permit a school to exclude a child when the child's parents or guardian did not agree with the change in the child's educational environment.


The court also held, however, that: "The stay-put provision in no way purports to limits or preempt the authority conferred upon the courts."

 The court also stated that:


"The stay-put provision did not operate to limit the equitable powers of district courts such that they cannot, in appropriate cases, temporarily enjoin a dangerous disabled child from attending school."

 I, therefore, hold that I do have authority to temporarily exclude the Plaintiff from school.

 The Supreme Court also provided language to guide ruling on the matter. The Court stated that a school could seek judicial aid to exclude a truly dangerous child. It, therefore, appears that only in extreme cases is the school's use of judicial review appropriate.

 Concerning actual review of a student's status, the court stated:


"Section 1415(e)(3), the stay-put provision, effectively creates a presumption in favor of the child's current educational placement which school officials can overcome only by showing that maintaining the child in his or her current placement is substantially likely to result in injury either to himself or herself or to others. "School officials, therefore, must demonstrate that there is a substantial likelihood that if the plaintiff is returned to school, he or she will injure himself, herself, or others."

 I note that the Court expressly placed the burden of proof upon school officials.

 I also note that despite counsel's assertion to the contrary, the Supreme Court did not rule upon the factual question of whether or not the student in Honig should or should not have returned to school. Counsel kept recapping the violence of the minor in the Honig decision in saying the Court did not order that back. So if the Court did not order that student back to school, you cannot possibly order Mr. Padilla back because Mr. Padilla is not nearly as violent as the student reflected in the Honig decision.

 But I want to make absolutely clear in this ruling that that was not the issue before the Supreme Court. The Supreme Court was never asked to decide the issue of whether that student should or should not be returned to school. The Supreme Court was only deciding whether the school district unilaterally could in fact exclude the student for violence, and it held that the school district could not but that the court could in fact review the issue. They never ruled on the particular merits in that way -- case.

 The Plaintiff asserts that he is suffering from attention deficit disorder without hyperactivity, a diagnosis that the school psychologist disputes. Although it is unclear whether or not Plaintiff actually has this disability, I must assume for purposes of this violence determination Plaintiff does. I, therefore, consider both the potential for dangerousness in this condition and Plaintiff's history of misbehavior at school.

 I note, preliminarily, that the results of the psychological testing performed on Plaintiff were apparently not consistent with an individual who has attention deficit disorder with hyperactivity. Plaintiff counters this by arguing that his disability is attention deficit disorder without hyperactivity and notes that such a condition is recorded in the Diagnostic and Statistical Manual of mental disorders, 3rd Edition, Revised 1987, the DSM-III-R -- although it's my recollection that there's been another one since then and they've streamlined and simplified categories.

 Nonetheless, upon review of that particular version, I note that this disorder is referred to as "undifferentiated attention deficit disorder," that the predominant feature is the persistence of developmentally inappropriate and marked inattention. Given this definition, it does not appear that dangerousness is necessarily a symptom of this disorder.

 I also note, however, that the text continues by stating:


"Research is necessary to determine if this is a valid diagnostic category and, if so, how it should be defined."

 It, therefore, appears that it cannot be assumed that because the Plaintiff -- cannot be assumed that the Plaintiff would initiate violent activity because of the disorder. This is not, however, itself determinative.

 The Supreme Court in Honig did not hold there must be a substantial likelihood the student would knowingly initiate violence but, rather, that returning the student presented a substantial likelihood that injury would result. Because of this, it must be considered whether Plaintiff's marked inattention could itself result in injury.

 The Plaintiff faces expulsion under California Education Code 48915(b), which I incorporate by reference. Because this section sets forth grounds that California legislators consider sufficiently dangerous to warrant expulsion, I shall consider this section to determine whether Plaintiff's behaviors were warranted.

 Section 48915 was amended in 1993. That amendment specifically dealt with student possession of firearms. It states in part:


"The principal or superintendent of schools shall immediately suspend any pupil found to be in possession of a firearm at school and shall recommend expulsion of the pupil to the governing body. The governing body shall expel that pupil whenever the principal or superintendent of schools and the governing board confirm the following:


"(1) The pupil was in knowing possession of the firearm;


"(2) An employee of the school district verifies the pupil's possession of the firearm."

 Although I do not rule on whether or not the Plaintiff could be expelled, I note that at the last hearing, Plaintiff's counsel made several arguments as to why it was not proper. These arguments included, first, the question of whether or not the pellet gun qualifies as a firearm. Second, the Plaintiff alleges due to his disorder, he forgot the gun was in his vehicle. He claims that he was not in knowing possession of it.

 Without ruling on these arguments, I note that Plaintiff's conduct was sufficiently distinct from the conduct described in this section that I cannot assume the Plaintiff's conduct would necessarily warrant expulsion under the law. I, therefore, cannot rule that based on this possession alone, Plaintiff is too dangerous to return to school or basically warrants per se expulsion. I, therefore, consider the affidavits and arguments.

 Plaintiff contends the Defendant has confused the term "impulsive" with "violent" and that Defendant makes the obtuse claim that Plaintiff's attention deficit disorder makes him likely to attack someone. Regardless of whether or not Plaintiff accurately describes Defendant's argument, this misstates the analysis.

 The Supreme Court referred to "a dangerous child," not "a violent child," and it referred to "resultant injury," not "resultant attacks." Injury due to inadvertence would therefore qualify as a ground for excluding Plaintiff from school.

 Concerning Defendant's argument that the Plaintiff is too dangerous to be permitted to return, I note that Defendant has noted that Plaintiff has been involved in a wild behavior in the past, such as knocking over a bookshelf, a fight with another student, throwing clay, and insubordination. It is the Defendant's position that, given this history, plus the fact that Plaintiff has access to a firearm and has brought it to school on at least two occasions, it would be too dangerous to permit Plaintiff to return to school.

 I note, however, that Plaintiff's parents have filed declarations in which they state that Plaintiff no longer has access to the gun at issue. I hope not. It's absurd that if his parents believe he's suffering from this attention deficit disorder, that they would actually let him have any access whatsoever to a weapon.

 It appears, therefore, that the possibility of a firearm exacerbating Plaintiff's previous inappropriate behavior has been eliminated at this point.

 I find significant the absence of a declaration by the school psychologist on the issue of Plaintiff'S dangerousness. Indeed, Mr. January did provide a declaration in which he stated he found the Plaintiff was ineligible for special education. No mention is made in this declaration of the possibility that the Plaintiff could prove dangerous, either intentionally or through inadvertence. I note that Mr. January found the Plaintiff had a clinically very significant level of impulsivity, but he did not suggest this would likely result in injury to Plaintiff or others.

 I also note that Plaintiff has provided a declaration from Mr. Don Spear, general manager of Barona casino and supervisor of Plaintiff, who has worked at the casino for three years. Mr. Spear states he has never observed the Plaintiff exhibit inappropriate behavior, nor has he ever observed Plaintiff raise his voice or threaten anyone. This declaration, therefore, suggests that Plaintiff has controlled his impulsivity in the past.

 Given all the facts, I do not find there is a substantial likelihood that a return of Plaintiff would result in injury to himself or others. The test results reveal Plaintiff is impulsive, but it does not appear such an extreme measure such as expulsion is appropriate at this point.

 I, therefore, deny Defendant's request for an injunction preventing Plaintiff from returning to school.

 I note, however, that the Supreme Court in Honig stated:


"The stay-put provision does not leave educators hamstrung."


The court noted:


"The provision does not preclude the agency from using its normal procedures for dealing with children who are endangering themselves or others."

  I do not opine on what the school's normal procedures are in such a situation, but I note that at issue is possible injury resulting from Plaintiff's inattention. It appears reasonable, therefore, that the school could limit the Plaintiff's activities so that inattention could not result in injury, with vehicles in particular that might likely be used to inadvertently or whatever to cause injury, such as shop equipment or motor vehicles.

  It is, therefore, ordered that Defendant's request for an order enjoining Plaintiff from returning to school is denied at this point. Defendant may not change the Plaintiff's current educational environment through expulsion, although it can take measures short of changing the current educational environment appropriate to ensure the safety of Plaintiff and fellow students.


  This cause having come on to be heard upon application of the minor Plaintiff for a Temporary Restraining Order upon the grounds alleged in the complaint herein, and upon the affidavits in support thereof; and this Court having considered the response of the Defendant and the declarations in support thereof; and upon the counter-claim for temporary restraining order upon the grounds alleged therein and declarations in support thereof; and this Court having considered the response of minor Plaintiff and declarations in support thereof; and this Court having heard the argument of counsel on March 16 and March 21, 1994, and based on the oral FINDINGS of this Court on those dates,


  1. That the minor Plaintiff's application for a temporary restraining order is hereby GRANTED pursuant to the "stay put" provision of the Individuals with Disabilities Education Act, 20 U.S.C. ยง 1415(e)(3), and Defendants are temporarily restrained from taking any action to further exclude said minor Martin Padilla, Jr., from his regular classes at El Capitan High School; and

  2. That Defendant's motion for temporary restraining order is DENIED in that Martin Padilla, Jr.'s presence on campus is not substantially likely to result in injury either to himself or others; and

  3. That Defendants may take such actions as are reasonably necessary to insure the safety of the students and staff of El Capitan High School; and

  4. This matter is set for preliminary injunction hearing on both Plaintiff's and Defendant's motions at 10:30 a.m. on May 31, 1994, in Department 6. Papers in support of the preliminary injunctions shall be served and filed by no later than May 2, 1994, and papers in opposition shall be served and filed by no later than May 16, 1994.

  Dated: 3/25/94

  The Honorable Judith Keep

  Chief Judge of the United

  States District Court for

  the Southern District of



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