Government Liability Update

Education Code Section Apportioning Liability for Use of School Grounds Does Not Abrogate Rules for Determining Dangerous Condition of Public Property

In Grossman v. Santa Monica-Malibu Unified School District, published March 25, 2019, the Second District Court of Appeal, Division 7 affirmed summary judgment granted to the defendant school district.  The school district permitted a school booster group and the PTA to hold a carnival fundraiser on a school's grounds.  During the carnival, an inflatable slide partially deflated and began to tip over while the plaintiff was on it, throwing the plaintiff to the concrete below.  The plaintiff alleged that the slide was improperly set up on the grass infield next to concrete, and that it was not tethered to the ground.  He alleged that the slide was a dangerous condition of property, and that the district knew or should have known that the slide was not set up, secured, or operated properly.  It was undisputed that the district did not own, operate, or set up the slide.  

The appellate court rejected the plaintiff's argument that Education Code section 38184 rendered the district liable for the plaintiff's injuries.  Subdivision (i)(1) of the statute apportions liability between  school districts and nonprofit entities using the school facilities or grounds.  Under the statute, a district is liable for an injury resulting from the negligence of the school district in the ownership and maintenance of the school facilities or grounds.  An entity using school facilities or grounds under this section is liable for an injury resulting from the negligence of that entity during the use of the school facilities or grounds.  Subdivision (i)(2), however, provides that the statute does not limit or affect the immunity or liability of a school district under the Government Claims Act for an injury caused by a dangerous condition of public property.  Based on this language, and the Education Code section's legislative history, section 38184 does not affect Government Code section 835's limitations on public entity liability for property conditions.  Under section 835, the district was not liable for the slide.  The slide was not district property, it was not operated by the district,  the conditions the plaintiff complained about did not result from the acts or omissions of district employees, and there was no evidence district employees had actual or constructive notice of the slide.

School District Did Not Infringe Student's First Amendment or Substantive Due Process Rights by Expelling Him in Response to Private Journal Entry Discussing School Violence

In McNeil v. Sherwood School District, published March 14, 2019, the 9th Circuit affirmed summary judgment in favor of the defendant school district in a 42 U.S.C. section 1983 case brought by a high school student and his parents.  The student wrote in his personal journal a hit list of students who "must die."  His mother discovered the journal in his room.  She made copies, and sought guidance from a therapist.  The therapist, believing the information triggered his duties as a mandatory reporter, contacted the police.  The police searched the house and confiscated a rifle and ammunition, but found nothing to indicate the student was planning to follow through with the list.  The police did not charge the student.  The police informed the school district.  As required by law, the district informed the parents of students on the list of the list, without identifying the author.  After media inquiries and social media accounts displaying the student's photo, the district informed all parents.  Parents transferred students out of the district, while others had their children skip school.  After a hearing, the district expelled the student for one year for making the list and disrupting the school.  The student sued for violation of his First Amendment rights.  The parents sued for violation of their due process right to educational venue choice.

The 9th Circuit ruled that the district had not violated the student's First Amendment rights.  When determining whether a school’s regulation of a student’s off-campus speech is constitutional, a court must consider all of the relevant circumstances.  The student's lack of intent to communicate the speech to any third party--such as when the student writes in a personal journal--is a relevant consideration, but it is not dispositive.  Here, the lack of intent to communicate the threat was offset by the fact his speech created an identifiable, credible threat of school violence.  He lived close to campus, and had weapons and ammunition.  The speech bore a significant nexus to the school.  The school district could therefore take disciplinary action.  Because his continued presence at campus would cause disruption, the discipline imposed was reasonable and not punitive.  The court also rejected the due process challenge to the expulsion.  That right entitled the parents to enroll the student at the high school.  Once there, the school had the power to administer discipline.  That included expelling the student from campus and supplying alternative, online instruction of him.

Despite Release to Complainants, Written Dispositions of Complaint against High School Coach Are Protected from Release under Public Record Act

In Associated Chino Teachers v. Chino Valley Unified School District, ordered published December 20, 2018, the Fourth District Court of Appeal, Division 2 reversed a trial court order denying an employee organization's writ of mandate to stop production under the California Public Records Act of the respondent district's written dispositions of two complaints against a high school volleyball coach for yelling at and belittling student athletes in public and holding practice at the coach's home.  After investigating the complaints, the district provided the written dispositions to the complainants.  A letter of warning and a letter of concern were placed in the coach's personnel file; the disposition letters were not.  The coach later resigned the coaching position.  A journalist made a CPRA request for documents demonstrating the results of the district's investigation.  The district informed the coach it intended to release the disposition letters unless a court order prevented release.

The appellate court ruled the trial court erred by denying the organization's petition for a writ stopping the release.  Although the records were released to complainants, that did not forfeit the right to assert the personnel and similar files exemption from release under the CPRA , or require the release of the documents to the general public.  That the same or like information in the dispositions is available elsewhere in the public domain does not forfeit the right to assert the records are confidential.  The coach's privacy interests in the letters outweighs any interest the public may have in viewing the insubstantial allegations and findings pertaining to the coach's actions in the coach's former position.  The letters constitute personnel or similar records, exempt from disclosure under Government Code section 6254(c) if release would be an unwarranted invasion of personal privacy.  Alternatively, the catch-all provision of Government Code section 6255, subdivision (a) applies.  The documents contain information about the coach subject to privacy issues:  investigations into allegations of misconduct.  Because the allegations were found to be groundless, and the alleged conduct was not serious, the public interest in disclosure does not outweigh the coach's privacy interest in the documents.

University Not Immune to Potential Liability for Failing to Prevent Mentally Ill Student from Attacking Fellow Student

In Regents of the University of California v. Superior Court (Rosen), published December 3, 2018, the Second District Court of Appeal, Division 7, on remand from the California Supreme Court, affirmed denial of the defendant Regents and university personnel's motion for summary judgment in a negligence case brought by a UCLA student who was stabbed in chemistry lab during a class by a fellow student.  Before the attack, the university received several indications that the attacker was having hallucinations, accused other students of insults that they did not make, and physically confronted one student.  The university moved him to a different dorm and required him to participate in counseling.  The plaintiff's experts opined that the university should have taken further action to address the disturbed student.  The university contended that it did not violate any duty of care to the injured student, and alternatively that it was immune from liability.  It challenged denial of its summary judgment motion by petitioning for writ relief.  The appellate court initially found no duty and granted the petition.  The California Supreme Court reversed, holding that universities owe a duty of reasonable care to students to protect them from foreseeable acts of violence in the classroom or during curricular activities.  It remanded the matter to the appellate court to determine the standard of care under the duty, whether triable issues of fact existed on breach of the duty, and whether the defendants were statutorily immune.

The appellate court held that the standard of care that applied was the reasonable person standard that generally applies to negligence cases, rather than the more limited standard applied to mental health professionals who fail to prevent their patients from attacking others.  The plaintiff must prove three elements to establish the university's vicarious liability under Government Code section 815.2 for its personnel's breach of the duty to protect students:  That the injury occurred while the plaintiff was engaged in activities that are part of the school’s curriculum or closely related to its delivery of educational services; that the university was aware of information that placed, or should have placed, it on notice that the perpetrator presented a foreseeable threat of violence to other students; and that the university failed to act with reasonable care in response to the foreseeable threat of violence.  The reasonable person standard of care is similar to that applied in K-12 school situations, although the degree of care may vary due to the different circumstances in a university, which deals with older students.  Based on the information the university personnel had before the attack, triable issues of fact exist on whether the student presented a foreseeable risk of violence and whether the university could have done more to prevent the attack.  The defendants are not immune under Government Code section 856, which immunizes decisions on whether to confine a person for mental illness.  The plaintiff did not contend that the university is liable for failing to confine the attacker, but rather that the school was negligent in its behavior toward the attacker, including failure to use the intervention techniques that were available to the school under its existing policies and procedures.  Discretionary immunity under Government Code section 820.2 also did not apply.  The  immunity applies only to policy and planning decisions.  The plaintiff did not challenge the school's policies and procedures, but rather how those policies were implemented.

Trial Court Did Not Abuse Discretion in Limiting Mini-Openings and Declining Challenges for Cause in Student Supervision Case

In Alcazar v. Los Angeles Unified School Dist., ordered published November 15, 2018, the Second District Court of Appeal, Division 1 affirmed judgment for the defendant school district after a jury trial.  The plaintiff was a middle-school student with learning disabilities who fell and was injured after swinging on a tree branch that broke.  The plaintiff alleged the school failed to properly supervise him.  During voir dire, the trial court initially allowed the parties to give mini opening statements.  During questioning of the first panel, some jurors expressed pre-judgment of the case based on the details given during the mini-openings.  The court then ordered that for subsequent panels the parties could not give mini-openings; instead, the court would read the statement of the case to which the parties had agreed.  The plaintiff's counsel was permitted to give several details of the case in his questioning of jurors.  Two jurors expressed uncertainty on whether they could be fair, but ultimately said they could.  The court declined the plaintiff's challenge to the jurors for cause.  The jury entered a defense verdict.  The plaintiff alleged that the court had exceeded its discretion under Code of Civil Procedure section 222.5 in limiting the use of mini-openings; and that the court abused its discretion in denying the challenges for cause.

The appellate court affirmed the trial court's exercise of its discretion.  Section 222.5, as it existed at the time of the trial, preserved the trial court's discretion to disallow mini-openings depending on the circumstances.  The circumstances here included jurors stating they had prejudged the case based on the mini-openings given.  The court has discretion to deny a challenge for cause, unless the juror expresses views indicative of an unalterable preference in favor of one side.  Since both jurors here stated they could keep an open mind, the court had discretion to deny the challenge.

University Denied Student a Fair Hearing by Depriving Him of Investigation Report Crucial to Its Decision Against Him

In Doe v. Regents of University of California, published October 9, 2018, the Second District Court of Appeal, Division 6 reversed a trial court decision denying a university student a petition for writ of administrative mandate.  A female student accused the male student of sexually assaulting her while the two were on a bed, the woman under the covers and the man on top of the covers.  Others were in the room and did not see the alleged assault.  A Santa Barbara County Sexual Assault Team investigated the alleged assault, and compiled a report.  At the administrative hearing contesting the male student's suspension, the committee hearing the matter saw only two pages from the SART report.  The man was not provided with a full copy of the report.  The committee allowed an investigating officer to testify to a portion of the SART report that appeared to corroborate that the woman had been sexually assaulted.  But the officer could not answer whether the information was based on a physical exam or on the woman's allegations.  Shortly before the administrative hearing, the student learned the name of an antidepressant the woman was taking.  He tried to submit his mother's testimony about the effects of the drug with alcohol, but the committee ruled she could not render an expert opinion.  The committee determined the allegations of assault were corroborated, and suspended the student for two years.

The appellate court ruled that the male student had been denied due process.  The committee denied the student a fair trial by accepting the investigator's testimony about a portion of the SART report, but not seeing the report themselves and denying the student a copy.  Fairness demands the accused person be given the evidence against him.  The Rule of Completeness also required that once a portion of the SART report was introduced into evidence, the student was entitled to get and submit evidence about the rest.  Since the report was crucial to the outcome, the errors were prejudicial.  Other errors that deprived the student of due process included that the antidepressant evidence was revealed to the student too late for him to obtain an expert opinion, yet the committee barred non-expert evidence; the committee did not permit the student to be represented by counsel at the hearing, yet the University had counsel present who made evidentiary objections; and the committee applied the rules of evidence inconsistently, to the student's detriment.

Officers Violated Fourth Amendment and Is Liable under State Law for Arresting Middle-School Students to Teach Them a Lesson

In Scott v. County of San Bernardino, published September 10, 2018, the 9th Circuit affirmed summary judgment granted to the plaintiffs, three middle-school students.  The three students, 12- and 13-year-old girls, went to school officials to talk about another student's bullying and threats toward them.  A school administrator asked one of the defendants, a deputy who was a school security officer, to come to the campus to talk to the girls and the girl they complained about.  He intended to mediate the conflict.  WIthin a few minutes, however, he decided that the girls were being disrespectful.  He decided to arrest them, to prove that he "wasn't playing around," "to prove a point" and "to make [them] mature a lot faster."  He and another deputy defendant handcuffed the girls.  The allege aggressor was released to her father on campus.  The others were driven in a police vehicle to  the sheriff's department, where they were interviewed and released to their parents.  No charges were filed.  At trial, the district court granted the plaintiffs summary judgment both on their 42 U.S.C. § 1983 claim and their state law false arrest claim.

The 9th Circuit agreed that the deputies were liable.  New Jersey v. TLO ruled that the Fourth Amendment protects students, subject to a "special needs" exception under which warrantless searches do not violate the Fourth Amendment if the actions are justified at their inception and reasonably related in scope to the circumstances that justified the actions.  The arrests violated both parts of the test.  The actions were not justified at their inception.  The deputies had no specific information any of the arrested girls had done anything.  Further, under the special needs exception, the officers' subjective motivation may be considered.  The deputies' stated reasons for the arrest did not provide justification for arrest.  Further, handcuffing and arresting middle-school girls was an unreasonable response to the school's need.  Because the law was clear that the deputies' arrest violated the Fourth Amendment, they were not entitled to qualified immunity.  Under state law, none of the statutes under which the deputies justified the arrest applied.  The district court therefore properly granted summary judgment on the state law false arrest ground as well.

Field-Trip Immunity Does Not Immunize Community College from Liability for Dangerous Condition of Property That Injures Member of Visiting Athletic Team

In Anselmo v. Grossmont-Cuyamaca Community College District, published August 3, 2018, the Fourth District Court of Appeal, Division 1 reversed  dismissal of the plaintiff's lawsuit on demurrer.  The plaintiff was a member of a community college women's volleyball team.  The team traveled to the defendant district's community college's campus to participate in an intercollegiate beach volleyball tournament.  The plaintiff alleged she was injured when she dove into the sand on the volleyball court and her knee hit a rock.  She sued the district for maintaining a dangerous condition of public property.  The trial court sustained the district's demurrer based on the field trips and excursions immunity provided to community colleges by title 5, section 55220 of the California Code of Regulations.

The appellate court ruled that the immunity does not apply to an injury suffered by a member of a visiting team during an intercollegiate athletic event.  The immunity protected the plaintiff's college from liability for operating the excursion that brought the plaintiff to the defendant's campus, but it did not protect the defendant from allegedly violating its duty not to increase the risk inherent in the sport by creating a dangerous condition of public property.  Otherwise, the district could be held liable to a student of the district for a dangerous condition, but could not be held liable to a visiting athlete injured by the same condition.

School Board's Policy of Opening Meetings with Prayer Violates Establishment Clause

In Freedom From Religion Foundation, Inc. v. Chino Valley Unified School District Board of Education, published July 25, 2018, the 9th Circuit affirmed the district court's grant of summary judgment and injunctive relief against the defendant school board.  The board instituted a policy of beginning each meeting with a prayer.  A rotating set of presenters, from a list, delivered the invocations.  Usually invited clergy delivered the prayers.  On some occasions, board members led the prayers. School board members made proselytizing remarks concerning Christianity in relation to the invocations.  Minor students, from grade school to high school age, took part in the school board meetings.  The injunction barred the board members from conducting, permitting, or endorsing school-sponsored prayers in board meetings.

The 9th Circuit agreed that under the circumstances the prayer policy violated the Establishment Clause of the First Amendment.  The court ruled that the prayer did not fall under the legislative-prayer tradition that permits certain types of prayers to open legislative sessions:  solemnizing and unifying prayers aimed at the legislators themselves, conducted before an audience of mature adults.  Instead, they are delivered before a group of minor students whose presence is not voluntary and whose relationship to board members (unlike a constituent's relationship to a legislature) is not one of full parity.  Further, the historical tradition of legislative prayer does not apply to school board prayer; at the time of the framing, free public education was virtually nonexistent.  The framers therefore could not have contemplated whether opening prayers at a government-run school board's meeting would violate the Establishment Clause.  The Lemon v. Kurtzman test for determining impermissible establishment of religion therefore applies.  The prayer policy fails that test, because it lacks a secular legislative purpose.  Government action violates that prong of Lemon when the government's predominant purpose is to advance or favor religion.  In evaluating purpose, the court takes the statements of public officials into account.  Shortly after the policy was adopted, a board member stated the policy's purpose was to further Christianity.  Further, there is no secular ground for limiting solemnization of meetings to prayers or presuppose the solemnizers will be religious leaders.  The expressed purpose of demonstrating tolerance for religious diversity fails, because there are many non-Christian faiths in California whose membership lacks a "critical mass" in the district to sustain a community there.  The invocation policy therefore reinforces the dominance of particular religious traditions.  Further, the policy does not embrace nonreligious belief systems.  Further, the policy fosters an impermissible entanglement between religion and government. 

Because Eleventh Amendment Bars Administrative Mandamus Petition against State in Federal Court, Suit against State University Barred by Failure to Exhaust Judicial Remedies

In Doe v. Regents of University of California, published June 6, 2018, the 9th Circuit Court of Appeals reversed denial of a motion to dismiss a suit against the Regents of the University of California and the Assistant Dean of Students at one of the UC universities.  The plaintiff, a university student, was suspended for alleged sexual assault of a fellow student.  The university held an administrative hearing before suspending him.  The plaintiff initially sued the Regents under Title IX, under 42 U.S.C. section 1983 (for denial of procedural due process), and under various state claims.  The district court granted a motion to dismiss the state law claims, on the ground that the plaintiff had not yet exhausted his judicial remedies by filing a Code of Civil Procedure section 1094.5 petition for writ of administrative mandamus challenging the administrative decision.  It dismissed the Title IX claim for failure to state a claim, and the section 1983 claim as barred by the Eleventh Amendment.  The plaintiff filed a first amended complaint that dropped the state law claims, added a section 1094.5 claim, reasserted the Title IX claim with additional allegations, added the assistant dean and asserted the section 1983 claims only against the assistant dean.  The district court dismissed the Title IX claim with prejudice and the section 1983 claim as barred by the Eleventh Amendment, and declined to exercise jurisdiction over the section 1094.5 claim.  The plaintiff filed a second amended complaint stating that the assistant dean was sued under section 1983 only in her official capacity, and reasserting the section 1094.5 claim.  The court denied a motion to dismiss.  The defendants took an interlocutory appeal.

The 9th Circuit ruled that the Eleventh Amendment barred the section 1094.5 claim.  Although there is an exception to the Eleventh Amendment for prospective injunctive relief, that exception does not apply when the state (or state instrumentalities, such as the Regents) is sued under state law.  A section 1094.5 claim is not just a procedural vehicle; it raises substantive state law claims.  Further, the complaint sought attorney fees under Government Code section 800(a), which applies when a complaint seeks relief under state law.  Since the only claim under state law was the section 1094.5 claim, he was seeking substantive relief.  The plaintiff therefore could not exhaust his judicial remedies in the federal lawsuit.  His Title IX and section 1983 claims were therefore barred by failure to exhaust judicial remedies.  Unless overturned by a writ of administrative mandamus under section 1094.5, the administrative decision had preclusive effect that barred his federal claims.