Untitled California Attorney General Opinion ( 1997 )

TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California
DANIEL E. LUNGREN
Attorney General
______________________________________
OPINION :
: No. 96-501
of :
: April 24, 1997
DANIEL E. LUNGREN :
Attorney General :
:
ANTHONY M. SUMMERS :
Deputy Attorney General :
:
______________________________________________________________________
THE HONORABLE KERRY MAZZONI, MEMBER OF THE CALIFORNIA
ASSEMBLY, has requested an opinion on the following questions:
1. May a school district suspend the enforcement of an expulsion order if the pupil has
committed one of the offenses for which expulsion must be ordered?
2. In taking final action to expel a pupil, must the governing board disclose the pupil's
name and the cause for the expulsion?
CONCLUSIONS
1. A school district may suspend the enforcement of an expulsion order even when the
pupil has committed one of the offenses for which expulsion must be ordered.
2. In taking final action to expel a pupil, the governing board must disclose the pupil's
name and the cause for the expulsion.
ANALYSIS
The Legislature has enacted a comprehensive statutory scheme (Ed. Code, §§ 48900-48926)
Footnote No. 1 governing the suspension and expulsion of pupils from public elementary and secondary
schools. "Suspension" is the "removal of a pupil from ongoing instruction for adjustment purposes . . . ."
(§ 48925, subd. (d).) "Expulsion" is the "removal of a pupil from (1) the immediate supervision and control,
or (2) the general supervision, of school personnel . . . ."
(§ 48925, subd. (b).)
The focus of the two questions presented for resolution is the expulsion of a pupil under the
terms of section 48915. Section 48915 provides:
"(a) Except as provided in subdivisions (c) and (e), the principal or the superintendent
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of schools shall recommend the expulsion of a pupil for any of the following acts committed at
school or at a school activity off school grounds, unless the principal or superintendent finds that
expulsion is inappropriate, due to the particular circumstance:
". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
"(b) Upon recommendation by the principal, superintendent of schools, or by a
hearing officer or administrative panel appointed pursuant to subdivision (d) of Section 48918,
the governing board may order a pupil expelled upon finding that the pupil committed an act
listed in subdivision (a) or in subdivision (a), (b), (c), (d), or (e) of Section 48900. A decision to
expel shall be based on a finding of one or both of the following:
". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
"(c) The principal or superintendent of schools shall immediately suspend, pursuant
to Section 48911, and shall recommend expulsion of a pupil that he or she determines has
committed any of the following acts at school or at a school activity off school grounds:
"(1) Possessing, selling, or otherwise furnishing a firearm. This subdivision does not
apply to an act of possessing a firearm if the pupil had obtained prior written permission to
possess the firearm from a certificated school employee, which is concurred in by the principal
or the designee of the principal. This subdivision applies to an act of possessing a firearm only if
the possession is verified by an employee of a school district.
"(2) Brandishing a knife at another person.
"(3) Unlawfully selling a controlled substance listed in Chapter 2 (commencing with
Section 11053) of Division 10 of the Health and Safety Code.
"(4) Committing or attempting to commit a sexual assault as defined in subdivision
(n) of Section 48900 or committing a sexual battery as defined in subdivision (n) of Section
48900.
"(d) The governing board shall order a pupil expelled upon finding that the pupil
committed an act listed in subdivision (c), and shall refer that pupil to a program of study that
meets all of the following conditions:
"(1) Is appropriately prepared to accommodate pupils who exhibit discipline
problems.
"(2) Is not provided at a comprehensive middle, junior, or senior high school, or at
any elementary school.
"(3) Is not housed at the schoolsite attended by the pupil at the time of suspension.
"(e) Upon recommendation by the principal, superintendent of schools, or by a
hearing officer or administrative panel appointed pursuant to subdivision (d) of Section 48918,
the governing board may order a pupil expelled upon finding that the pupil, at school or at a
school activity off of school grounds violated subdivision (f), (g), (h), (i), (j), (k), (l), or (m) of
Section 48900, or Section 48900.2, 48900.3, or 48900.4, and either of the following:
". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ."
Sections 48900 48900 2 48900 3 and 48900 4 list numerous acts for which a pupil may be suspended or
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Sections 48900, 48900.2, 48900.3, and 48900.4 list numerous acts for which a pupil may be suspended or
recommended for expulsion. Section 48911 sets forth the procedures to be followed in suspending a pupil.
1. Suspension of Expulsion Order Required By Law
We are first asked whether a school district may suspend the enforcement of an expulsion
order that is required by law (§ 48915, subd. (d)). We conclude that it may.
For committing one of the offenses described in subdivision (c) of section 48915, a pupil is
to be "immediately suspend[ed]," and the principal or superintendent "shall recommend expulsion." Under
subdivision (d) of the statute, "[t]he governing board shall order [the] pupil expelled upon finding that the
pupil committed an act listed in subdivision (c) . . . ." "Shall" is clearly mandatory in this context, where the
Legislature has also used the permissive term "may" (see, e.g., § 48915, subd. (b), (e)). (See Forster v.
Superior Court (1992) 11 Cal. App. 4th 782, 791 ["since the Legislature used the words both `shall' and `may'
in the different subdivisions . . . , it presumably did so to distinguish between mandatory and directory
provisions"].)
While we have indicated that expulsion is the "removal of a pupil from (1) the immediate
supervision and control, or (2) the general supervision of school personnel," (§ 48925, subd. (b)), numerous
acts must take place before a pupil is removed from school supervision, including: (1) commission of the
offense, (2) recommendation of expulsion, (3) determination that the offense was committed, (4) the vote to
expel, (5) issuance of the order of expulsion, and (6) enforcement of the order of expulsion. The mandate of
subdivision (d) of section 48925 is that the governing board must "order a pupil expelled." Voting and
issuance of an expulsion order are different from the enforcement of the order.
Whether an order of expulsion must be enforced or may be suspended is determined by a
different statute, section 48917. Subdivision (a) of section 48917 provides:
"The governing board, upon voting to expel a pupil, may suspend the enforcement of
the expulsion order for a period of not more than one calendar year and may, as a condition of
the suspension of enforcement, assign the pupil to a school, class, or program that is deemed
appropriate for the rehabilitation of the pupil."
Under section 48917 an expulsion order may be suspended in its enforcement if specified conditions are met.
We are to interpret statutes so as to harmonize their various purposes. "`A statute must be
construed "in the context of the entire statutory scheme of which it is a part, in order to achieve harmony
among the parts."'" (People v. Hull (1991) 1 Cal. 4th 266, 272.) "`[S]tatutes or statutory sections relating to
the same subject must be harmonized, both internally and with each other, to the extent possible.'" (Walnut
Creek Manor v. Fair Employment & Housing Com. (1991) 54 Cal. 3d 245, 268.)
Section 48915 deals with a board's vote to expel, while section 48917 concerns the
enforcement of an expulsion order. As indicated in the latter statute, the enforcement of an expulsion order
may be suspended and the pupil assigned "to a school, class, a program that is deemed appropriate for the
rehabilitation of the pupil." In this manner sections 48915 and 48917 are harmonized, and each is given
effect. Neither supersedes the other.
We thus conclude in answer to the first question that a school district may suspend the
enforcement of an expulsion order even when the pupil has committed one of the offenses for which
expulsion must be ordered.
2. Disclosure of the Pupil's Name and Offense
The second question presented is whether a pupil's name and the offense committed must be
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The second question presented is whether a pupil s name and the offense committed must be
disclosed to the public when the pupil is ordered expelled. We conclude that disclosure is required.
Section 48918 provides several procedural methods for conducting a hearing to determine
whether a pupil should be expelled. The hearing may be conducted by the governing board, a hearing officer,
or an administrative panel. If the hearing is conducted by a hearing officer or administrative panel, findings
of fact and a recommendation must be submitted to the governing board. (§ 48918, subd. (f).)
With respect to whether the governing board must disclose a pupil's name and the cause for
expulsion, section 48918 provides:
"The governing board of each school district shall establish rules and regulations
governing procedures for the expulsion of pupils. These procedures shall include, but are not
necessarily limited to, all of the following:
". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
"(c) . . . the governing board shall conduct a hearing to consider the expulsion of a
pupil in a session closed to the public, unless the pupil requests, in writing, at least five days
prior to the date of the hearing, that the hearing be conducted at a public meeting. Regardless of
whether the expulsion hearing is conducted in a closed or public session, the governing board
may meet in closed session for the purpose of deliberating and determining whether the pupil
should be expelled.
". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
"(j) Whether an expulsion hearing is conducted by the governing board or before a
hearing officer or administrative panel, final action to expel a pupil shall be taken only by the
governing board in a public session. . . .
"(k) The governing board shall maintain a record of each expulsion, including the
cause therefor. Records of expulsions shall be a nonprivileged, disclosable public record.
"The expulsion order and the causes therefor shall be recorded in the pupil's
mandatory interim record and shall be forwarded to any school in which the pupil subsequently
enrolls upon receipt of a request from the admitting school for the pupil's school records."
Thus an expulsion hearing must be conducted in closed session unless the pupil makes a written request that
the hearing be conducted at a public meeting. The final action of the governing board to expel a pupil must
be taken in public, and the minutes must include the reason for the expulsion.
(See also §§ 35145-35146.) Section 48918 expressly answers the question whether the cause of a pupil's
expulsion must be disclosed to the public. It must.
As for identifying the expelled pupil, we believe that the pupil's name is also subject to
public disclosure under the terms of section 48918. We are to interpret statutes so as to effectuate the intent
of the Legislature. (Brown v. Kelly Broadcasting Co. (1989) 48 Cal. 3d 711, 724.) "In doing so we turn first to
the statutory language, since the words the Legislature chose are the best indicators of its intent. [Citation.]"
(Freedom Newspapers, Inc. v. Orange County Employees Retirement System (1993) 6 Cal. 4th 821, 826.) The
words of a statute are to be given "their usual and ordinary meaning." (DaFonte v. Up-Right, Inc. (1992) 2
Cal. 4th 593, 601.) "Statutes are to be given a reasonable and commonsense interpretation . . . ." (Dyna-Med,
Inc. v. Fair Employment & Housing Com. (1987) 43 Cal. 3d 1379, 1392.)
Here, section 48918 requires that "final action to expel a pupil shall be taken only by the
governing board in a public session" and that "a record of each expulsion including the cause therefor
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governing board in a public session" and that "a record of each expulsion, including the cause therefor
. . . shall be a nonprivileged, disclosable public record." We believe that the commonly understood meaning
of the phrase "final action to expel a pupil" necessarily includes the pupil's name. It defies common sense to
suggest that the phrase "a record of each expulsion" was intended by the Legislature not to identify the pupil.
The pupil's name must be considered part of the final action taken by the governing board and of the record
of expulsion. (See 59 Ops.Cal.Atty.Gen. 619, 621-622 (1976); 44 Ops.Cal.Atty.Gen. 147, 149-150 (1964).)
We recognize that section 49076 generally prohibits the disclosure of "pupil records"
without parental consent or a judicial order. A "pupil record" is "any item of information directly related to
an identifiable pupil, other than directory information, which is maintained by a school district or required to
be maintained by an employee in the performance of his duties whether recorded by handwriting, print, tapes,
film, microfilm or other means." (§ 40961, subd. (b).) This confidentiality provision is consistent with the
Legislature's treatment of juvenile court records, which are confidential (Welf. & Inst. Code, § 827; see, e.g.,
In re Christopher W. (1973) 29 Cal. App. 3d 777; In re Fred C. (1972) 26 Cal. App. 3d 320), and with the rules
of confidentiality of personal information maintained by government agencies (Civ. Code, § 1798.24).
Although the Legislature has expressed a general policy in favor of the nondisclosure of a
pupil's records, it has in section 48918 required that expulsion records "shall be a nonprivileged, disclosable
public record." The specific directive of section 48918 controls the more general statutory language favoring
nondisclosure. (See Woods v. Young (1991) 53 Cal. 3d 315, 325 ["`specific provision relating to a particular
subject will govern a general provision'"]; Fremont Comp. Ins. Co. v. Superior Court (1996) 44 Cal. App. 4th
867, 873 ["the specific controls the general"].) Footnote No. 2
The Legislature has also declared that certain California statutes (§§ 49060-49079) are to be
applied in a manner consistent with the provisions of the federal Family Education Rights and Privacy Act
(20 U.S.C. § 1232g) "regarding parental access to, and the confidentiality of, pupil records in order to insure
the continuance of federal education funds to public educational institutions within the state . . . ." (§ 49060.)
The federal law prohibits the release of any records relating to the discipline of students without the written
consent of the parents; otherwise, "[n]o [federal] funds shall be made available" to the institution. (20 U.S.C.
§ 1232g(b)(1).) However, the federal law does not purport to preempt any state laws, and section 48918 is
not one of the statutes identified by the Legislature as requiring interpretation consistent with the federal law.
Footnote No. 3
We conclude in answer to the second question that in taking final action to expel a pupil, the
governing board must disclose the pupil's name and the cause for the expulsion. The minutes of the meeting
must so reflect. In responding to requests from the public for the release of expulsion records, the school
district is required to disclose the pupil's name and the cause for the expulsion.
*****
Footnote No. 1
All references hereafter to the Education Code are by section number only.
Footnote No. 2
Courts have both withheld the names of pupils suspended or expelled (see, e.g., John A. v. San Bernardino City Unified
School Dist. (1982) 33 Cal. 3d 301; Fremont Union High Sch. Dist. v. Santa Clara County Bd. of Education (1991) 235
Cal. App. 3d 1182; Gordon J. v. Santa Ana Unified Sch. Dist. (1984) 162 Cal. App. 3d 530) and disclosed such names (see,
e.g., Garcia v. Los Angeles County Bd. of Education (1981) 123 Cal. App. 3d 807; Lovell v. Poway Unified School Dist. (9th
Cir. 1996) 90 F.3d 367; Coplin v. Conejo Valley Unified School Dist. (C.D.Cal. 1995) 903 F. Supp. 1377). Whether a school
district would be subject to liability for the failure to disclose the name is beyond the scope of this opinion. (See Skinner v.
Vacaville Unified School Dist. (1995) 37 Cal. App. 4th 31.)
Footnote No. 3
The Legislature has declared that the confidentiality terms of sections 49060-49079 are to control over any conflicting
provisions contained in section 12400 and in Government Code sections 6250-6270. We cannot add section 48918 to this
list specified in section 49060 in the guise of statutory interpretation. "`[C]ourts are no more at liberty to add provisions to
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what is therein declared in definite language than they are to disregard any of its express provisions.'" (Wells Fargo Bank v.
Superior Court (1991) 53 Cal. 3d 1082, 1097.) The Legislature thus knows how to resolve the conflict between section
48918 and sections 49060-49079 in favor of the latter statutory scheme if it chooses to do so. (See Safer v. Superior Court
(1975) 15 Cal. 3d 230, 236, 238; Board of Trustees v. Judge (1975) 50 Cal. App. 3d 920, 927; see also Wildlife Alive v.
Chickering (1976) 18 Cal. 3d 190, 196; DeWeese v. Unick (1980) 102 Cal. App. 3d 100, 106; Rich v. State Board of
Optometry (1965) 235 Cal. App. 2d 591, 607.)
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