[00:00:00] Speaker 03:
On the record, I want to add counsel.

[00:00:03] Speaker 03:
We're calling the case of KJ versus Dr. Jackson.

[00:00:08] Speaker 02:
Thank you, Judge Owens, and may it please the court.

[00:00:10] Speaker 02:
My name is Gorian Dadukian.

[00:00:11] Speaker 02:
I have the privilege of representing KJ, who's in court today, along with his entire family.

[00:00:17] Speaker 02:
I would like to reserve three minutes for rebuttal.

[00:00:19] Speaker 03:
Very well.

[00:00:20] Speaker 02:
Thank you.

[00:00:21] Speaker 02:
This court shares the same two issues as the Jensen case you just heard of qualified immunity and the expungement of records.

[00:00:28] Speaker 02:
But this case was decided on summary judgment, not a motion to dismiss.

[00:00:33] Speaker 02:
And in this case, the district court did reach the constitutional issue and found that the defendants had violated KJ's right to procedural due process.

[00:00:42] Speaker 02:
I'd like to start with that constitutional violation, then turn to qualified immunity and expungement if time allows.

[00:00:48] Speaker 02:
But of course, I'm here to answer any questions in any order.

[00:00:53] Speaker 02:
The constitutional violation here was that the defendants imposed new discipline.

[00:00:58] Speaker 02:
based on new charges and new evidence, and they never gave KJ an opportunity to respond to those charges and to defend himself.

[00:01:06] Speaker 03:
So let me jump in with a preliminary question.

[00:01:08] Speaker 03:
The video, I understand during the first hearing, or the only hearing I'll call it, the video was not part of that, correct?

[00:01:15] Speaker 02:
Correct.

[00:01:15] Speaker 03:
Okay, thank you.

[00:01:16] Speaker 02:
Correct.

[00:01:18] Speaker 02:
And neither was any allegation by the defendants that KJ had hit anybody or injured anybody.

[00:01:25] Speaker 02:
The allegation at the first hearing

[00:01:27] Speaker 02:
was that he had been involved or participated in a group fight.

[00:01:31] Speaker 02:
And that was described as a pushing and shoving match.

[00:01:35] Speaker 02:
And then a few days later, the allegation changed significantly when the defendants accused KJ of hitting somebody in the head and causing a serious injury.

[00:01:45] Speaker 02:
But they never gave him the opportunity to respond to those charges.

[00:01:49] Speaker 02:
And that was really important because the administrators here didn't witness the fight, didn't have any direct evidence of wrongdoing.

[00:01:57] Speaker 02:
And even a year after the fight, when we took his deposition, the vice principal didn't even know who threw the punch that caused the injury.

[00:02:05] Speaker 02:
And so it was important and I would say essential for the defendants to interview KJ and to ask him if he ever hit anybody.

[00:02:13] Speaker 02:
And if they had done that, he would have vehemently denied hitting anybody during that fight because he simply didn't do that.

[00:02:21] Speaker 01:
But also,

[00:02:25] Speaker 01:
On the one hand, the suggestion is that the suspension was extended from three days to five days, but on the other hand, it actually was extended for several weeks.

[00:02:39] Speaker 02:
Is that right?

[00:02:39] Speaker 02:
Yes, Your Honor, that's exactly right.

[00:02:41] Speaker 02:
It was actually extended.

[00:02:43] Speaker 02:
In hindsight, we can measure the exact amount.

[00:02:45] Speaker 02:
It was 13 more days of suspension.

[00:02:47] Speaker 02:
At the time they issued it, it was an indefinite suspension that was pending the outcome of the expulsion hearing.

[00:02:54] Speaker 02:
And that brings me to the second point, which is not only did they increase the number of days of suspension, but they tried to expel him from his high school, which significantly raised the stakes and the potential consequences for KJ by that additional discipline.

[00:03:11] Speaker 02:
So the question.

[00:03:13] Speaker 01:
But that wouldn't interact with the Gauss hearing, because they weren't proposing to expel him before a hearing.

[00:03:25] Speaker 01:
Yes, Your Honor.

[00:03:26] Speaker 01:
So the consequence of the expulsion is just that it extended the suspension.

[00:03:30] Speaker 02:
Correct.

[00:03:32] Speaker 02:
It's because they proposed the expulsion and extended the suspension until that hearing was held that significantly extended the number of days that he was excluded from school.

[00:03:43] Speaker 05:
When did they, just to be clear, just to be clear about it, when did they propose the expulsion?

[00:03:48] Speaker 02:
On February 8 of 2022.

[00:03:50] Speaker 05:
That was the same day as

[00:03:52] Speaker 05:
That was not the same day as the incident.

[00:03:54] Speaker 05:
The incident was on the 4th.

[00:03:56] Speaker 02:
No, that's correct.

[00:03:57] Speaker 02:
So the incident was on the 4th.

[00:03:59] Speaker 02:
The first suspension was on the 4th.

[00:04:01] Speaker 02:
Right.

[00:04:02] Speaker 02:
And when that first suspension was either already served or almost served is when they imposed a second suspension which extended the exclusion from school from 3 to 13 days and as I said proposed is expulsion.

[00:04:16] Speaker 05:
OK.

[00:04:17] Speaker 02:
Thank you.

[00:04:18] Speaker 02:
So the question is, is there qualified immunity?

[00:04:21] Speaker 02:
And I agree with the statement from counsel in the prior case about what the standard is.

[00:04:26] Speaker 02:
The standard is, would reasonable administrators on the ground be able to read a case and figure out what they need to do to comply with the law?

[00:04:35] Speaker 02:
And I would say that in this case, the defendants here, if they only had Goss and no other decision from any other court, they would have known exactly what to do for two reasons.

[00:04:46] Speaker 02:
One, Goss clearly establishes when

[00:04:48] Speaker 02:
due process is triggered for students.

[00:04:50] Speaker 02:
And due process is triggered anytime school administrators impose discipline that has the effect of excluding students from school.

[00:05:00] Speaker 02:
So as I said before, on February 8th, when they issued the second suspension, GOST was clearly triggered because it increased the number of days that KJ ended up missing from school.

[00:05:11] Speaker 02:
So then the question becomes, what did the administrators have to do to comply with GOST?

[00:05:16] Speaker 02:
And that's clearly answered in the decision too because there's three separate requirements that GOSS imposes.

[00:05:24] Speaker 02:
They have to, administrators have to tell the student what it is that they did, what the charges are, what the evidence, the charges are based on, and they have to give the student an opportunity to respond to those charges and give their side of the story.

[00:05:40] Speaker 03:
And here, if I could just jump in, it'll help my thinking.

[00:05:43] Speaker 03:
It seems to me that as I read GOSS,

[00:05:46] Speaker 03:
The school district has two problems.

[00:05:48] Speaker 03:
First, GOSS talks about uses that 10 days.

[00:05:51] Speaker 03:
That's like more than 10 is different.

[00:05:55] Speaker 03:
And we have that problem.

[00:05:57] Speaker 03:
Then we also have the problem is that evidence was introduced against your client after the hearing happened.

[00:06:05] Speaker 03:
There was not a second hearing to say, well, now we've got this new evidence.

[00:06:08] Speaker 03:
We're going to start over again.

[00:06:10] Speaker 03:
That never happened here.

[00:06:11] Speaker 02:
That's exactly right.

[00:06:12] Speaker 03:
So you've got two problems under GOSS.

[00:06:15] Speaker 03:
if you're the school district.

[00:06:17] Speaker 01:
The third one is that they changed the charge.

[00:06:20] Speaker 01:
I'm sorry?

[00:06:20] Speaker 01:
The third one is that they changed the charge.

[00:06:24] Speaker 02:
They did change the charge and you can call that a third violation or part of the second violation, but you're absolutely right Judge Owens.

[00:06:33] Speaker 02:
Yes, they converted the suspension from a short-term to a long-term suspension when they issued the second one.

[00:06:40] Speaker 02:
On top of that, even

[00:06:42] Speaker 02:
The more rudimentary protections for a short-term suspension were not complied with.

[00:06:48] Speaker 02:
Those protections are clearly established by GOSS.

[00:06:52] Speaker 02:
Every administrator should know that, what those are.

[00:06:56] Speaker 02:
You need to tell the student what they did.

[00:06:58] Speaker 02:
You need to tell the student what evidence you have.

[00:07:00] Speaker 02:
And you need to allow them to respond.

[00:07:02] Speaker 02:
And they didn't do any of those three things with regard to the new charge.

[00:07:06] Speaker 01:
Well, they did tell the parents about the new charge.

[00:07:09] Speaker 01:
That's true, but they didn't tell KJ about the new charge, and Goss is very clear that the student is the one who has the right to do... That seems to be your weakest point, because I don't know whether the notice to the parent wasn't good enough, but the larger point is that they didn't get his story in response to that.

[00:07:27] Speaker 02:
Exactly.

[00:07:28] Speaker 02:
You anticipated my point, which is even if that notice had been given to KJ,

[00:07:34] Speaker 02:
It still wouldn't have been good enough under Gauss because they never heard from him.

[00:07:37] Speaker 02:
They never gave him an opportunity to say whether or not he hit anybody before they issued that second suspension.

[00:07:46] Speaker 03:
I had a completely different question just real quick about the superintendent.

[00:07:53] Speaker 03:
For those of us who were in San Diego, we know he's no longer the superintendent.

[00:07:58] Speaker 03:
Is your case still against him as the idea he actually had actual knowledge of this, or was it because he happened to be the superintendent at the time?

[00:08:05] Speaker 02:
So your honor, I would say two things in response to that.

[00:08:10] Speaker 02:
Our official capacity claim against the superintendent, we would have to substitute the new superintendent under I think it's rule 25.

[00:08:17] Speaker 02:
The individual capacity claim against him

[00:08:22] Speaker 02:
It's still, we still have that claim against him personally.

[00:08:26] Speaker 02:
There's been briefing on that, whether or not that should be dismissed or not.

[00:08:31] Speaker 02:
I would say that the district never addressed a standard for individual liability of the superintendent.

[00:08:37] Speaker 02:
So that should go back to the district court.

[00:08:39] Speaker 05:
We should just let the district court sort that all out if we were to agree with you.

[00:08:43] Speaker 02:
Absolutely.

[00:08:46] Speaker 02:
I'd like to say one more thing about qualified immunity and then briefly turn to expungement.

[00:08:51] Speaker 02:
I would point out that GOSS by itself should have told the administrators here what to do.

[00:08:57] Speaker 02:
But there are also six or seven district court decisions that are on point.

[00:09:02] Speaker 02:
And the point about those district court decisions is that they are unanimous.

[00:09:07] Speaker 02:
They're over the course of 30 or 40 years.

[00:09:10] Speaker 02:
None of them suggest that this is a novel or open question.

[00:09:13] Speaker 02:
They were all decided by a straightforward application of GOSS.

[00:09:17] Speaker 02:
And so that further buttresses our point

[00:09:21] Speaker 02:
that we're not asking for this court or we weren't asking the district court to create new law here or to create a new standard or anything of the sort.

[00:09:30] Speaker 02:
All we were asking the district court to do and the administrators was to read Goss and apply it.

[00:09:40] Speaker 02:
On expungement, real briefly because I'm running short on time, I want to point out that the district court made a mistake because it applied the wrong standard.

[00:09:49] Speaker 02:
granted summary judgment to the defendants based on standing.

[00:09:53] Speaker 02:
But this is a mootness case, not a standing case.

[00:09:57] Speaker 02:
And first of all, I think it's black letter law that standing has to be measured when you file the complaint, not at some later point in the future.

[00:10:05] Speaker 02:
And when we filed our complaint, KJ was sitting home from school.

[00:10:09] Speaker 02:
He was still suspended.

[00:10:11] Speaker 02:
And we requested an injunction that would have returned him back to school.

[00:10:15] Speaker 02:
There could be no possible argument that KJ didn't have standing when he

[00:10:19] Speaker 02:
filed his complaint.

[00:10:21] Speaker 02:
The argument is that he lost that standing or the case became moot when they allowed him to go back to school.

[00:10:28] Speaker 02:
But that's a mootness argument, not a standing argument, because it's based on facts that happened after we filed.

[00:10:36] Speaker 02:
And that makes a huge difference for a few reasons.

[00:10:38] Speaker 02:
One, mootness is a much more flexible standard than standing.

[00:10:43] Speaker 02:
The burden shifts to the defendants.

[00:10:46] Speaker 02:
And a much lower showing of future harm has been held to be sufficient to give the federal court jurisdiction.

[00:10:53] Speaker 02:
And finally, if it is a mootness issue, then Flint is directly on point and governs.

[00:10:59] Speaker 02:
The same mootness argument was made in Flint.

[00:11:03] Speaker 02:
The same records were at issue of school discipline records.

[00:11:06] Speaker 02:
And this court held that just the fact that those school discipline records could potentially affect a student's future employment or

[00:11:14] Speaker 02:
College admission was enough to get around mootness, and the same is true here.

[00:11:19] Speaker 02:
I'd like to reserve the balance.

[00:11:20] Speaker 02:
Very well.

[00:11:21] Speaker 03:
Thank you, Counsel.

[00:11:31] Speaker 04:
Good morning, Your Honors.

[00:11:32] Speaker 04:
Mike Sullivan on behalf of Dr. Jackson, Mr. Podorski, and Mr. Caviola.

[00:11:40] Speaker 04:
I'd like to start off by addressing the due process issue and specifically the question that the court raised about new evidence, and then I'll talk about 10 days, but I'll hit him in that order if that's okay.

[00:11:54] Speaker 04:
I would suggest this is, if we look at what the court says in Gauss, this was, it's not the situation that you must interview the plaintiff first and last.

[00:12:06] Speaker 04:
What the testimony is, undisputed, is that Mr. Caviola asked

[00:12:10] Speaker 04:
KJ about the fight.

[00:12:13] Speaker 04:
What happened in the fight?

[00:12:14] Speaker 04:
That's what Goss says you need to do.

[00:12:16] Speaker 04:
What was it that happened?

[00:12:18] Speaker 04:
He got his side of the story.

[00:12:20] Speaker 04:
He got the background with regard to that.

[00:12:23] Speaker 04:
That's actually in writing from KJ in terms of what led to the fight and that there was alleged statements that had been made to him and the other person had bullied him in the past.

[00:12:33] Speaker 04:
That's what you're required to do under GOSS, is ask the person about what it is.

[00:12:38] Speaker 04:
You're not required to then, because you've spoken to somebody else, go back and talk to them again.

[00:12:43] Speaker 04:
This is not a case where there was a new fact.

[00:12:47] Speaker 04:
Oh, now I'm saying you had a gun.

[00:12:49] Speaker 05:
Was he told that he intentionally injured another student?

[00:12:52] Speaker 04:
Well, he wasn't given the specific elements, as the court says you don't have to do.

[00:12:57] Speaker 04:
He was asked, what happened with the fight?

[00:13:00] Speaker 04:
The change from being

[00:13:03] Speaker 04:
participated in the fight to try to injure the student, I forget the exact term, willfully tried to do that.

[00:13:17] Speaker 04:
That's just the factual conclusion that the person made after they saw the evidence.

[00:13:22] Speaker 04:
There is nothing, in fact, this court and the Supreme Court.

[00:13:25] Speaker 01:
Just to read from Gauss.

[00:13:26] Speaker 01:
Sure.

[00:13:27] Speaker 01:
The student must be given oral or written notice of the charges against him.

[00:13:30] Speaker 01:
He wasn't.

[00:13:32] Speaker 01:
If he denies them an explanation of the evidence the authorities have, he wasn't.

[00:13:37] Speaker 01:
He was given an opportunity to present his side of the story, but not as to the new charges or the new evidence.

[00:13:48] Speaker 04:
See, I would disagree that when you're asking the person, you participated in a fight.

[00:13:54] Speaker 04:
Tell me what happened in the fight.

[00:13:56] Speaker 01:
Was he given an explanation of the evidence the authorities had?

[00:14:00] Speaker 04:
of the evidence that they had at that time.

[00:14:03] Speaker 01:
Yes.

[00:14:03] Speaker 01:
Absolutely.

[00:14:04] Speaker 01:
And they had no evidence.

[00:14:05] Speaker 01:
That's the problem.

[00:14:06] Speaker 04:
But the point is, there is no law that turns around and says, there's no case that says, you've gotten testimony from somebody else, and now you've got to go back.

[00:14:15] Speaker 05:
Why did they increase the punishment from three days to, what was it, five days, and expulsion?

[00:14:22] Speaker 04:
And I would like to talk about the extension beyond that.

[00:14:25] Speaker 04:
The reason that they did, as it stated in the writing, is because

[00:14:28] Speaker 04:
They heard about the extent of the injuries.

[00:14:31] Speaker 04:
This was after the little meeting.

[00:14:34] Speaker 04:
Yes, they heard about the extent.

[00:14:35] Speaker 01:
Well, they didn't only hear about them, they saw a video.

[00:14:38] Speaker 04:
Well, they did.

[00:14:39] Speaker 04:
They saw the video.

[00:14:39] Speaker 04:
But what they stated in the reason why they did it, in the document, what they stated was, we heard about the extent of the injuries.

[00:14:50] Speaker 04:
That's what's stated in the document.

[00:14:52] Speaker 04:
Well, that was medical evidence.

[00:14:53] Speaker 04:
He wasn't going to be able to respond with regard to what was

[00:14:57] Speaker 04:
How badly was the person injured?

[00:14:59] Speaker 04:
What was the information that we got back from the doctor?

[00:15:01] Speaker 04:
There was not going to be, he wasn't going to say, no, no, the doctor is wrong.

[00:15:05] Speaker 01:
It was not one person, but two, as I understand it.

[00:15:08] Speaker 01:
And it was whether they were injured at all.

[00:15:12] Speaker 04:
Oh, I don't think there was a question.

[00:15:14] Speaker 04:
I don't think there's anything that would indicate that there was a question as to whether or not they were injured at all.

[00:15:19] Speaker 04:
That was evident from the beginning and stated at the beginning that these people were injured.

[00:15:24] Speaker 04:
The question is how badly were they injured?

[00:15:27] Speaker 04:
A person comes out of a football game and they're limping.

[00:15:30] Speaker 04:
The question is did they blow their ACL or was this a slight sprain?

[00:15:34] Speaker 04:
That was the question is how badly was this injury?

[00:15:39] Speaker 04:
And they got new information with regard to that that a medical doctor could answer.

[00:15:44] Speaker 04:
Here's the other thing that I wanted to bring up with regard to this extension.

[00:15:47] Speaker 04:
It wasn't an indefinite extension.

[00:15:48] Speaker 04:
And remember that Goss is talking about the fact of trying to make this workable for the school.

[00:15:56] Speaker 04:
What is the school to do in the situation where you're trying to provide a reasoned hearing, but you can't put the person back

[00:16:06] Speaker 04:
in the situation where there could be a reoccurrence.

[00:16:10] Speaker 04:
There was clearly bad blood between these students.

[00:16:14] Speaker 04:
There was a statement that's in the record from KJ's mother saying that she didn't feel that her son was safe at school.

[00:16:25] Speaker 04:
They've stated that they want to get counsel.

[00:16:28] Speaker 04:
So there needs to be some protracted period of time, not protracted, but some period of time

[00:16:34] Speaker 04:
before you have the hearing.

[00:16:38] Speaker 04:
If you put everybody immediately back in school and suspend the suspension, there's another fight and now you have a negligence claim.

[00:16:48] Speaker 00:
This isn't about that.

[00:16:50] Speaker 00:
It's about a procedural issue.

[00:16:55] Speaker 04:
Yes, but the question is how is the procedure going to work here?

[00:16:59] Speaker 04:
Does the procedure stay

[00:17:01] Speaker 04:
say, put everybody back in school until you have the hearing, or is the procedure we can hold the status quo?

[00:17:08] Speaker 04:
And to address, Judge Jones, your point about how long this was and 13 days, it's really not accurate to say that.

[00:17:18] Speaker 04:
And here's why.

[00:17:18] Speaker 04:
They immediately put them on notice of the opportunity for alternative school.

[00:17:28] Speaker 04:
What the law says is that they have the obligation to provide schooling, not a specific school.

[00:17:36] Speaker 04:
And immediately at the time, they put them on notice on the 8th when they extended it from three days to five days.

[00:17:44] Speaker 04:
He was out for, I mean, he wasn't going to come back per their instruction for the five days.

[00:17:50] Speaker 04:
But beyond that, he could have at any time,

[00:17:54] Speaker 04:
gone to ALBA, that's their alternative school, that was put in writing with regard to talk to our, I forget what the person is called, but talk to our person with regard to that.

[00:18:06] Speaker 04:
And so there was the opportunity.

[00:18:07] Speaker 04:
But isn't that exactly what a school should do in that situation?

[00:18:12] Speaker 05:
Had it not been for the additional information that the Vice Principal acquired after meeting with KJ,

[00:18:22] Speaker 05:
And the suspension had only been for three days.

[00:18:26] Speaker 05:
He would have been back in school on the fourth day, is that right?

[00:18:31] Speaker 04:
Would have been back in school.

[00:18:33] Speaker 04:
The fourth was a Friday.

[00:18:35] Speaker 05:
In four days.

[00:18:36] Speaker 05:
He would have been back in school on, let's see, Monday, Tuesday.

[00:18:42] Speaker 05:
Wednesday, he would have been back in school, right?

[00:18:45] Speaker 04:
No, because the fourth wouldn't have counted as a day.

[00:18:49] Speaker 04:
He would have been out Monday, Tuesday, Wednesday.

[00:18:51] Speaker 04:
He would have been back in school on the 10th.

[00:18:54] Speaker 04:
On the 10th.

[00:18:54] Speaker 05:
And nothing else would have happened.

[00:18:56] Speaker 05:
He just would have been back in school.

[00:18:57] Speaker 05:
Had they not extended.

[00:19:02] Speaker 05:
He'd only been out for three days.

[00:19:03] Speaker 05:
That's all I'm trying to... Right.

[00:19:04] Speaker 05:
That's it.

[00:19:04] Speaker 05:
And he would have been back.

[00:19:05] Speaker 05:
Would have been back on Thursday.

[00:19:06] Speaker 05:
And so the additional information

[00:19:09] Speaker 05:
caused them to extend the suspension and to decide that he should be expelled from school.

[00:19:16] Speaker 05:
A recommendation for expulsion.

[00:19:18] Speaker 05:
Well, I mean, he couldn't do it.

[00:19:19] Speaker 05:
The vice principal couldn't impose.

[00:19:23] Speaker 05:
He recommended that he be expelled.

[00:19:28] Speaker 05:
which triggered a whole another scenario, correct?

[00:19:31] Speaker 04:
Right, it goes to a hearing.

[00:19:32] Speaker 05:
Right, it had to, and he couldn't go back to school while that was in process.

[00:19:36] Speaker 04:
Well, what he could have done had they chosen to do so is he could have gone back to school at ALBA, that's the school that is set up for exactly these situations.

[00:19:47] Speaker 04:
He could have gone back to school during that interim period of time.

[00:19:52] Speaker 04:
which courts have said is a reasonable alternative in terms of that.

[00:19:59] Speaker 04:
But what's the alternative?

[00:20:00] Speaker 04:
The alternative is you put him back in school, they get another fight, and you have a lawsuit saying you didn't protect my kid because you knew there was danger, you knew there was bad blood, and before there was any hearing, before there was any decision, you put him back together, and now there's a problem there.

[00:20:20] Speaker 04:
So this was exactly

[00:20:21] Speaker 04:
the right way to have done it.

[00:20:25] Speaker 04:
I would suggest they needed to maintain the status quo until there was a hearing.

[00:20:30] Speaker 04:
This was not like the cases that council references where they didn't do anything, they didn't set a hearing, there was immediate communication, there was immediate written notification of rights, there was an opportunity for him to go to ALBA.

[00:20:50] Speaker 04:
Unless you have any other questions, let me just briefly hit the qualified immunity and then the official capacity issues.

[00:20:59] Speaker 04:
With regard to the qualified privilege issue, I think that

[00:21:10] Speaker 04:
It's not at all clear to administrators.

[00:21:13] Speaker 04:
What Goss says is, this is flexible.

[00:21:17] Speaker 04:
This depends on the specific case.

[00:21:19] Speaker 04:
We have to see what happens.

[00:21:21] Speaker 04:
From their standpoint, they've gotten his story multiple times.

[00:21:26] Speaker 04:
And I would also note, by the way, and this is a little bit of a side note, the district judge made an error

[00:21:35] Speaker 04:
with regard to the due process if for no other reason than he considered the evidence that was provided with regard to our motion for summary judgment which was based on the undisputed facts.

[00:21:48] Speaker 04:
They brought a motion for summary judgment and there is a dispute on this whole issue of exactly what was said to them on the 8th when it was extended.

[00:22:02] Speaker 04:
what was said to, it was said to the KJ's mother, actually, I'm sorry, on the seventh, what was said to KJ's mother after he had viewed the video.

[00:22:13] Speaker 04:
Mr. Caviola's testimony is that he spoke to the mother and did more.

[00:22:21] Speaker 04:
We can't, for purposes of our summary judgment, we can't rely on that, but it's disputed.

[00:22:27] Speaker 04:
But at most, it should be sent back to the... And did what?

[00:22:31] Speaker 01:
I'm sorry.

[00:22:32] Speaker 01:
He spoke to the mother and did what?

[00:22:34] Speaker 04:
Spoke to her about the evidence that he had gotten from the video.

[00:22:39] Speaker 01:
But he didn't speak to the child.

[00:22:40] Speaker 01:
He didn't ask the child what happened.

[00:22:41] Speaker 01:
Well, as you pointed out, I don't think that the... Well, I think that's true as to notice, but not as to hearing the side of the story.

[00:22:48] Speaker 01:
She wasn't there.

[00:22:48] Speaker 01:
She can't tell the side of the story.

[00:22:50] Speaker 04:
Well, she did tell the side of the story.

[00:22:52] Speaker 04:
She submitted an email with regard to that.

[00:22:57] Speaker 04:
She had taken over from his perspective.

[00:22:59] Speaker 04:
She had taken over being his mouthpiece with regard to that.

[00:23:03] Speaker 04:
And the school isn't going to interject and say, no, no, I don't want to talk to you, parent.

[00:23:06] Speaker 04:
Let me talk directly to the student.

[00:23:08] Speaker 04:
If the parent's wanting to speak, then that's what it was.

[00:23:11] Speaker 04:
I didn't see any email in which, I saw some emails, but I didn't see any email in which she... The email that she sent was on the night, it was like 8 47 p.m.

[00:23:20] Speaker 04:
on the night of the 4th.

[00:23:21] Speaker 03:
Do you have an ER record for that?

[00:23:25] Speaker 04:
I do, I probably, I do.

[00:23:34] Speaker 04:
I'll have to look it up.

[00:23:35] Speaker 04:
I had a printing issue when I got here, and I apologize.

[00:23:39] Speaker 04:
But it's around 118, something like that, somewhere in that range of ER.

[00:23:48] Speaker 04:
Anyway, the fact is, I certainly don't think it's clear at all to the administrators that having interviewed him, having gotten his story verbally, having gotten his story in writing, having gotten his additional story version from

[00:24:05] Speaker 04:
his mother, that they hadn't gotten his side of the story, that they had not complied with their requirements under GOSS.

[00:24:13] Speaker 04:
And so I don't believe that there's a basis for bringing an individual, a claim against them individually.

[00:24:19] Speaker 04:
Lastly, let me hit the standing issue.

[00:24:24] Speaker 04:
Council talks about mootness and standing.

[00:24:27] Speaker 04:
The fact is you have to have both.

[00:24:29] Speaker 04:
It has to not be moot and there has to be Article 3 standing.

[00:24:35] Speaker 04:
And when I look at the cases here, there are Ninth Circuit cases, let me step back and say it's very clear the courts have said very specifically that there is no

[00:24:49] Speaker 04:
automatic standing for expungement.

[00:24:53] Speaker 04:
There has to be an injury in connection with the expungement.

[00:24:57] Speaker 04:
And if you look at the cases, you have the two cases, one Judge Perez that you authored and one that you were on, with regard to that.

[00:25:07] Speaker 04:
In those cases, you had expungement issues that did not involve private records, that involved demonstrated

[00:25:18] Speaker 04:
harms to the student.

[00:25:20] Speaker 04:
You also, on the other hand, have two cases.

[00:25:27] Speaker 04:
I'm going to flip to them really quick here so I can give you the names.

[00:25:38] Speaker 04:
You have the two Ninth Circuit cases, Cruz and Phillips.

[00:25:46] Speaker 04:
And in Cruz and Phillips,

[00:25:48] Speaker 04:
expungement was held not to confer standing.

[00:25:51] Speaker 04:
And the reason was that in those cases, there wasn't an injury.

[00:25:55] Speaker 04:
And Phillips was very clear last year in 2023 in saying that retention of records alone.

[00:26:01] Speaker 01:
But here we know that, well, we don't know.

[00:26:03] Speaker 01:
But I mean, we could decide that there was, in fact, an injury retrospectively.

[00:26:10] Speaker 01:
I mean, there was an injury.

[00:26:11] Speaker 01:
He was invalidly suspended, if we hold that, right?

[00:26:18] Speaker 01:
And so this is an instance in which the expungement would be responsive to an actual constitutional injury.

[00:26:33] Speaker 01:
The whole point of the Phillips case, or at least a lot of it, was about that they seemed to be arguing for a per se rule about expungement giving you standing, whether or not there was anything unconstitutional about the collection.

[00:26:48] Speaker 01:
of the material.

[00:26:51] Speaker 04:
As I understand, what is all that is being requested at this point?

[00:26:55] Speaker 01:
At this point, but not when the case was filed.

[00:27:02] Speaker 04:
At the time the case was filed, expungement was not even sought as a remedy.

[00:27:07] Speaker 04:
And so at the time expungement was sought as a remedy, that was the only thing.

[00:27:13] Speaker 04:
So the case is moot as to any type of reinstatement.

[00:27:17] Speaker 04:
There is no standing with regard to expungement, and you have to have both.

[00:27:22] Speaker 04:
It's not an either or situation.

[00:27:26] Speaker 04:
I do see my time is run, but if I could wrap up on that briefly.

[00:27:33] Speaker 04:
And so I think you have to go back and you look at the, they have to show with regard to the only relief that is being sought, which is expungement, that expungement would cause some injury.

[00:27:49] Speaker 01:
And given the fact that the records are private and the only thing that- But aren't there a fair number of cases recognizing that in a school situation that there is a likelihood of injury through

[00:28:02] Speaker 01:
college applications, through job applications, through other things that happen during the school, that there's a sufficient risk at least to get over a mootness question.

[00:28:11] Speaker 04:
No.

[00:28:12] Speaker 04:
There are not in cases where the records, like they are here and they're private.

[00:28:17] Speaker 04:
There are not cases that say simply... But completely private.

[00:28:20] Speaker 05:
Other teachers would be allowed to look at the records.

[00:28:23] Speaker 05:
His subsequent teachers.

[00:28:27] Speaker 04:
I don't believe the subsequent teachers.

[00:28:29] Speaker 04:
Administrators can look at it in the case of discipline, but then you would have to say, you'd have to speculate, which courts have said you can't do on that, speculate that he's going to commit some future discipline.

[00:28:41] Speaker 03:
Well, let me ask you this way.

[00:28:42] Speaker 03:
I mean, all of us have had kids go through college.

[00:28:44] Speaker 03:
I mean, the college application process asks all kinds of questions.

[00:28:48] Speaker 03:
including have you been suspended.

[00:28:49] Speaker 03:
If you apply for scholarships, you have to say whether you've been suspended or not and the length of it.

[00:28:54] Speaker 04:
But he would have to answer that

[00:28:57] Speaker 03:
in the affirmative regardless.

[00:28:59] Speaker 03:
Right, but there's three versus five.

[00:29:01] Speaker 03:
So what if the application was suspended four days or more?

[00:29:04] Speaker 04:
It doesn't, but that's not.

[00:29:05] Speaker 04:
The Common App, which is the only evidence, remember there's summary judgment, they have to submit evidence, they haven't submitted any evidence on that.

[00:29:10] Speaker 04:
The Common App, which they did ask for judicial notice of now, doesn't ask that.

[00:29:15] Speaker 04:
What the Common App says, if I can find it to... You're going to say it says any suspension.

[00:29:23] Speaker 04:
Yeah, it says any suspension, and it says, and we don't even say that this will be considered, and some schools look at this and some schools don't.

[00:29:31] Speaker 04:
It makes it very clear.

[00:29:32] Speaker 04:
I would encourage you to look at the language on the Common App, which is the only evidence they've submitted.

[00:29:37] Speaker 04:
It makes it completely speculative that it will be viewed, and it would have to be disclosed in any event, and it makes no difference.

[00:29:46] Speaker 04:
And I'll tell you, candidly, as an education and higher ed lawyer for

[00:29:51] Speaker 04:
25 years.

[00:29:52] Speaker 04:
I've never seen one that says four days or more, five days or more.

[00:29:56] Speaker 04:
It's exactly what you see on the Common App.

[00:29:58] Speaker 04:
And in this case, because there was due process given for the three days, he has to disclose in any event.

[00:30:03] Speaker 01:
And if he wants to go to the Army, he doesn't have to, I don't know the answer to this, but does he or work for the FBI or something?

[00:30:10] Speaker 01:
He doesn't have to answer questions like this?

[00:30:14] Speaker 04:
The answer is we don't know.

[00:30:15] Speaker 04:
They haven't submitted any evidence.

[00:30:16] Speaker 04:
This is a summary judgment case.

[00:30:18] Speaker 04:
They would have had to have submitted some evidence with regard to that, and then we could rebut it.

[00:30:23] Speaker 04:
And I would be prepared to rebut it.

[00:30:25] Speaker 04:
They haven't submitted any evidence, so I can't tell you what they do at Army.

[00:30:29] Speaker 05:
All right.

[00:30:29] Speaker 05:
Thank you.

[00:30:29] Speaker 05:
Can I just get one clarification point?

[00:30:31] Speaker 05:
And that's this.

[00:30:32] Speaker 05:
You said that the email that the mother wrote advancing

[00:30:37] Speaker 05:
KJ's story was in the record.

[00:30:40] Speaker 05:
The only email chain that I've seen in the record is what was attached to the stipulated facts around ER-128.

[00:30:49] Speaker 04:
It's attached to Mr. Caviola's declaration.

[00:30:57] Speaker 04:
It's part of his declaration.

[00:31:01] Speaker 04:
Part of his declaration.

[00:31:05] Speaker 04:
My recollection is exhibit B to Mr. Caviola's declaration.

[00:31:10] Speaker 04:
The email that he received, it's a chain.

[00:31:13] Speaker 04:
It's about the fourth email down.

[00:31:16] Speaker 04:
In other words, there's a thing where they're responding on other things.

[00:31:19] Speaker 04:
But if you read down further in the chain, that's there.

[00:31:22] Speaker 04:
It was sent at 847 on the night of the fourth.

[00:31:26] Speaker 05:
OK.

[00:31:26] Speaker 05:
Thank you.

[00:31:28] Speaker 04:
OK.

[00:31:30] Speaker ?:
Thank you.

[00:31:38] Speaker 05:
Yeah, because I just see that now.

[00:31:44] Speaker 03:
You may proceed.

[00:31:45] Speaker 02:
Oh, thank you.

[00:31:46] Speaker 02:
I'd like to start with the last point first about education or disciplinary records.

[00:31:51] Speaker 02:
And Judge Berzon, I think you're exactly right.

[00:31:54] Speaker 02:
School discipline records are different.

[00:31:56] Speaker 02:
They're unique.

[00:31:57] Speaker 02:
And the Phillips case said so at page 995 of the opinion when it distinguished Flint.

[00:32:04] Speaker 02:
And Flint is not alone.

[00:32:07] Speaker 02:
Cases going all the way back to Goss have recognized that school disciplinary records, if a student is suspended or expelled for charges that are proven to be erroneous, that that would cause the kind of reputational harm that is enough to give standing and to get around mootness concerns, as was the case in Flint.

[00:32:33] Speaker 02:
My colleague says that the defendants here complied with due process because on the first day, on February 4th, they met with KJ and asked him to give his version of what happened during the fight.

[00:32:47] Speaker 02:
But at that point in time,

[00:32:49] Speaker 02:
KJ had no reason to believe that he was being accused of hitting someone in the head or causing a serious injury, even if he could somehow read minds.

[00:32:58] Speaker 02:
Even Vice Principal Calviola did not know at that time that a student had been hit in the head or injured in the fight.

[00:33:05] Speaker 02:
What the Vice Principal and KJ discussed on February 4th was a group fight and a pushing and shoving match.

[00:33:13] Speaker 02:
And KJ never had the opportunity to respond

[00:33:17] Speaker 02:
to the new charges that he had hit somebody in the head and caused an injury.

[00:33:21] Speaker 02:
And that email that my friend referred to, it's very important to point out a couple things about that.

[00:33:29] Speaker 02:
That email was on February 4th.

[00:33:31] Speaker 02:
It was before there was any allegation or suggestion that KJ had hit anybody or injured anybody in that fight.

[00:33:39] Speaker 02:
And there was an argument that it's somehow a disputed fact whether or not

[00:33:46] Speaker 02:
KJ had an opportunity to respond to the new charges.

[00:33:49] Speaker 02:
Well, if you look at ER 113 at paragraph 13, that's our joint statement of undisputed facts, the parties agreed that at no point after the time KJ went home from school on February 4th did he ever speak with any of the school administrators before he came back on March 1st.

[00:34:11] Speaker 02:
So he simply never was given one chance to tell

[00:34:16] Speaker 02:
Vice Principal Caviola what happened or what he did or didn't do in that fight.

[00:34:20] Speaker 05:
Was anybody else suspended by the way?

[00:34:23] Speaker 02:
Yes, Your Honor.

[00:34:24] Speaker 02:
I believe five students in total were suspended.

[00:34:27] Speaker 02:
And that brings up a good point.

[00:34:28] Speaker 02:
This was a group fight with lots of students involved and every student had a different level of involvement in the fight.

[00:34:36] Speaker 02:
So it's really important to point out that again, I said this before,

[00:34:42] Speaker 02:
A year after the fight, I asked Vice Principal Cavio, well, what made you think that it was KJ who caused this injury?

[00:34:48] Speaker 02:
And he still didn't know.

[00:34:50] Speaker 02:
He still didn't know a year after the fight who caused this injury.

[00:34:53] Speaker 02:
And so Gauss is very clear about this.

[00:34:57] Speaker 02:
When the administrator doesn't see what happened, they have to get the student's perspective, not the parents, not anybody else, but the student who was there and who can respond to what exactly happened or didn't happen.

[00:35:10] Speaker 02:
And again, if KJ had that opportunity, he would have looked Vice Principal Calviola in the eye and said, I didn't cause this.

[00:35:18] Speaker 02:
This isn't about whether the suspension should have been extended or not.

[00:35:22] Speaker 02:
This is about process.

[00:35:23] Speaker 02:
Like Judge Berzon, you said this is a due process case.

[00:35:26] Speaker 02:
It's about process and whether the administrators could do this without ever hearing from KJ on this.

[00:35:34] Speaker 02:
One fact that one new charge that was the difference between missing three days of school

[00:35:38] Speaker 02:
and missing another 13 days of school while everything was sorted out by the administrators.

[00:35:47] Speaker 02:
Thank you.

[00:35:52] Speaker 02:
I would ask the court to reverse and remand back to the district court.

[00:35:55] Speaker 03:
Thank you, counsel.

[00:35:56] Speaker 03:
Thank you to you both for your briefing and argument in this case.

[00:35:59] Speaker 03:
This matter is submitted.