California Court of Appeals, Fourth District, Third Division
Appeal from a judgment of the Superior Court of Orange County, No. 30-2011-00502239 Ronald L. Bauer, Judge.
Deborah L. Pepaj and Lisa C. Dennis for Plaintiff and Appellant.
Soltman, Levitt, Flaherty & Wattles, John S. Levitt and Brad D. Citron for Defendant and Respondent.
MOORE, ACTING P. J.
Appellant Scott B. was a student at the Orange County High School of the Arts (OCHSA or the school), a charter school. The school permits the dismissal of a student if the student accumulates 25 demerits. Although Scott exceeded the maximum number of 25 demerits allowed, the school did not dismiss him. However, when Scott exhibited a knife at school and threatened a fellow student, he was suspended and eventually dismissed from OCHSA. Scott had accumulated 52 demerits by the time of the incident with the knife. He appealed his dismissal to the Board of Trustees of OCHSA (the Board). The Board upheld the dismissal. Scott thereafter filed a petition for a writ of administrative mandate in the superior court. (Code of Civ. Proc., § 1094.5; all statutory references are to the Code of Civil Procedure, unless otherwise stated.) The trial court denied the petition, finding dismissal was proper based on Scott’s conduct. Scott appeals from the judgment denying his petition for a writ of mandate. Although Scott admits having the knife at school, he contends the Board’s decision was an abuse of discretion because the Board did not make findings to support its decision as required by section 1094.5, and the knife did not qualify as a knife under the Education Code. We find section 1094.5 does not apply in this matter in that Scott was not entitled to an evidentiary hearing before he was dismissed from OCHSA, and the Board did not abuse its discretion in affirming his dismissal.
OCHSA is an authorized charter school located in Santa Ana. It exists under provisions of the Education Code and is operated pursuant to its written charter. Scott, who was diagnosed as having attention deficit/hyperactivity disorder (ADHD) at a very young age, was a student at OCHSA.
On May 9, 2011, Scott was 14 years old and possessed a knife at school, exhibited the knife in class, and threatened other students. During the same class, Scott called another student in the class a “stupid Asian bitch.” When the instructor asked Scott if he had a knife, Scott surrendered the knife to her. Scott admitted to a school official that during the incident he said, “When I turn 21, I’m going to get a gun and shoot you.” He said he exhibited the weapon to other students to “shut them up.”
After the assistant principal conferred with the principal and the director of student services, the decision was made to suspend Scott for five days and to contact the Santa Ana Police Department. Scott’s mother was informed of the suspension that same day. When she went to the school to pick up Scott that day, the assistant principal informed Scott and his mother the matter would be reviewed to determine whether Scott should be dismissed from the school. When the police completed their investigation, Scott was released to his mother. The school sent a letter to Scott’s mother that same day, explaining the suspension.
A two and a half-hour manifestation determination review meeting was held on May 16, 2011, and was attended by Scott, his mother, advocates for Scott, Scott’s attorney, the OCHSA principal, assistant principal, director of special services, school psychologist, special education coordinator, special education attorney for the Santa Ana Unified School District, and the teacher in whose room the incident occurred. The purpose of the review was to determine whether any of the conduct was a manifestation of Scott’s ADHD. School staff found the act of bringing the knife to school was not a manifestation of Scott’s ADHD.
That same day, May 16th, the assistant principal sent a letter to Scott’s mother, informing her of the decision to dismiss Scott from OCHSA. The letter further notified Scott’s mother of the right to appeal the decision, which Scott did.
Scott’s appeal was heard by the Board on May 25, 2011. Scott was represented by his mother and two advocates. He offered evidence on the issue of mitigation and alternatives to expulsion or dismissal, arguing this was his first violation. He admitted having the knife and showing it to another student as a silent threat. According to Scott, he pulled the knife out in response to the student’s comment that “Scott always wants attention since he never gets it.” Scott stated in his declaration that he felt the student’s statement reflected on his disability.
The Board unanimously affirmed the principal’s dismissal of Scott from OCHSA. The letter informing Scott of the Board’s determination consisted of one sentence: “The Orange County High School of the Arts Board of Trustees in the closed session of the Board Meeting scheduled on May 25, 2011 has voted 5-0 to support the ...