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.]
[FROM MARCH 16, 1994, TRANSCRIPT]
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 ...