AGUIRRE v. SAN BERNARDINO CITY UNIFIED SCHOOL DISTRICT (1980)

OPINION

More than 20 years ago Professor Warren A. Seavey expressed outrage over the failure of state educational institutions to accord students normal procedural safeguards before imposing disciplinary sanctions and was equally shocked “to find that a court supports them in denying to a student the protection given to a pickpocket.” (Seavy, Dismissal of Students: “Due Process,” 70 Harv.L.Rev. 1406, 1407.) Today we are called upon to decide whether a student facing expulsion from a public high school is entitled to one of the most basic procedural safeguards known to American constitutional jurisprudence-the right of confrontation and cross-examination.

One evening following a high school freshman football game, a fight involving a number of the players apparently erupted on the district's San Bernardino High School campus. No teachers, coaches or other school officials witnessed the incident. The following day, the mother of a team member informed the school administration that her son and another boy had been assaulted and injured during the fight. Vice Principal Fitzgerald was assigned to investigate the incident. He talked with eight students, including plaintiff, then a 14-year-old freshman, who were allegedly involved in the altercation and took their signed statements. Thereafter, plaintiff was suspended from school for his alleged participation in the fight and notice of the suspension was sent to plaintiff's mother.

A few days later, the school principal wrote to plaintiff's mother informing her that he was recommending that her son be expelled for assaulting and injuring two students without any provocation¹ and that plaintiff would remain on suspension pending resolution of the matter. Several days later, the district superintendent's office informed plaintiff's mother by letter that a hearing had been scheduled on the question of plaintiff's expulsion. The letter reiterated the charge upon which the proposed expulsion was based and informed plaintiff and his mother that they would have an “opportunity to participate in the discussion of his case,” that they could “present evidence, both oral and documentary,” and that they might be accompanied by a friend or advisor or, if they desired, might “employ and be represented by counsel.” Enclosed with the letter was a copy of the school district's rules on student discipline which contained a recital of the matters required to be included in a notice of an expulsion hearing.²

On the appointed day, the expulsion matter came on for hearing before a three-member panel composed of certificated employees of the district who were not employed at the high school attended by plaintiff.³ Plaintiff, his mother, and Vice Principal Fitzgerald were in attendance. The chairperson of the hearing panel opened the proceedings by telling plaintiff and his mother that the purpose of the hearing was to afford them the opportunity to hear the charges and the information gathered by the school staff, the chance to refute or add to that information, and to make statements on plaintiff's behalf. The chairperson then read into the record a letter from the high school principal to the district superintendent recommending plaintiff's expulsion for the alleged assaults,⁴ Mr. Fitzgerald's written report of his investigation, and signed statements Mr. Fitzgerald had obtained from the eight students he had interviewed. After reading the foregoing matters into the record, the chairperson turned to plaintiff and asked: “What exactly happened that day after the football game?” Plaintiff was thereafter questioned by panel members concerning the incident and also concerning his attendance record and an incident in which he was reported to have hit another student in class.

In the statements which Mr. Fitzgerald obtained from the students, each gave a somewhat different version of the incident; six, however, said that plaintiff had either struck or kicked the two boys who were allegedly injured. Plaintiff, both in his statement to Mr. Fitzgerald and at the hearing, maintained that he neither struck nor kicked the boys. He did admit holding one of them. He characterized the entire incident as “play boxing” such as often took place after football practice or games. In response to questions from the panel, plaintiff insisted that the incident had not been racially motivated; he denied he had yelled, “White boy” or chased the two boys at the beginning of the melee. He also felt that the two boys could not have been injured because they attended and took part in football practice the following Monday. Vice Principal Fitzgerald stated that at the time he conducted his investigation the boys “didn't have any obvious injuries,” but that from the statements they made he was of the view that they were “in pain, at the time of the fight.” Plaintiff's mother told the panel that plaintiff had never been in serious trouble before.

The hearing panel found that plaintiff along with another student “took part in an unprovoked attack on two students” and recommended that plaintiff be expelled for the remainder of the school year (circa 61/2 months); it also recommended that he be readmitted “upon receipt of a letter from a licensed therapist indicating satisfactory involvement in a counseling program.” The school board adopted the hearing panel's recommendation and ordered plaintiff expelled for the remainder of the school year. Plaintiff appealed the expulsion to the County Board of Education, but the board, after hearing, affirmed the school board's decision.

Plaintiff filed a petition for administrative mandamus for review and vacation of the expulsion order on the ground he was denied procedural due process before the administrative hearing panel. In the course of the hearing, the trial court, over plaintiff's objection, permitted the district to file approximately 30 declarations from district school administrators to the effect that it was essential to the safety and welfare of students on their respective campuses that schools be able to discipline students without subjecting their accusers to confrontation and cross-examination because otherwise fear of retaliation would make students reluctant to give information on disciplinary matters.⁵

The court decided that plaintiff's administrative hearing had been fair and after exercising its independent judgment on the evidence determined that the hearing panel's findings were supported by the weight of the evidence. The court made findings of fact and conclusions of law accordingly and entered judgment denying the petition for writ of mandate. Plaintiff appeals from the judgment.

Plaintiff's primary contention and the one we have found to be determinative of this appeal is that the due process clauses of the federal and state Constitutions guaranteed to him the right of confrontation and cross-examination and that deprivation of that right rendered his expulsion invalid. The school district initially urges that plaintiff's readmission to school for the 1979-1980 school year has rendered the appeal moot. In any event, the district maintains that due process in an expulsion hearing does not encompass the right to confront and cross-examine adverse witnesses and that plaintiff's hearing was conducted in strict compliance with all constitutional and statutory procedural requirements.

For reasons we explain below, we have decided that this appeal has not been rendered moot by plaintiff's readmission to school pending appeal. On the merits, we have concluded that the due process clause of the 14th Amendment and of article 1, section 7 of the California Constitution⁶ guarantees to a student faced with expulsion from a public high school for misconduct the opportunity to confront and cross-examine adverse witnesses unless the hearing officer or panel specifically finds that the granting of such a right would expose witnesses to risk of injury. We have further determined that plaintiff was denied the right of confrontation and cross-examination and that his expulsion should, therefore, be annulled.

I

The district makes the threshold contention that plaintiff's readmission to school has rendered this appeal moot. We disagree. The general rule governing mootness is that when an event occurs pending appeal which renders it impossible for the reviewing court to grant appellant any effectual relief should it decide in his or her favor, the appeal should be dismissed for mootness. (Eye Dog Foundation v. State Board of Guide Dogs for the Blind, 67 Cal.2d 536, 542, 63 Cal.Rptr. 21, 432 P.2d 717; Paul v. Milk Depots, Inc., 62 Cal.2d 129, 132, 41 Cal.Rptr. 468, 396 P.2d 924; Consol. etc. Corp. v. United A. etc. Workers, 27 Cal.2d 859, 863, 167 P.2d 725.) In the case at bench, plaintiff's mandate petition sought annulment of the expulsion order and reinstatement. If we should decide that the expulsion was invalid for failure to respect plaintiff's due process rights, we may grant part of the relief sought notwithstanding plaintiff's readmission by reversing with directions to issue a peremptory writ of mandate commanding the school to expunge the expulsion order. The appeal is, therefore, not moot.⁷

Moreover, even had readmission rendered this appeal otherwise moot, this case comes within the well-recognized qualification to the general rule that where the appeal presents questions of continuing public interest that are likely to recur, resolution of those issues is appropriate. (Marin County Bd. of Realtors, Inc. v. Palsson, 16 Cal.3d 920, 929, 130 Cal.Rptr. 1, 549 P.2d 833; Green v. Layton, 14 Cal.3d 922, 925, 123 Cal.Rptr. 97, 538 P.2d 225; Eye Dog Foundation v. Guide Dogs for the Blind, supra, 67 Cal.2d 536, 542, 63 Cal.Rptr. 21, 432 P.2d 717.) What process is due a student facing expulsion from a public high school is a matter of continuing importance to children in the public school system, school boards, and school administrators. We, therefore, address the merits.

II

As we indicated at the outset, the underlying issue on this appeal is whether plaintiff was entitled to the procedural safeguards of confrontation and cross-examination.⁸

In Goss v. Lopez, 419 U.S. 565, 95 S.Ct. 729, 42 L.Ed.2d 725, the high court held that where exclusion from the public educational process on disciplinary grounds involves a suspension of not more than 10 days, the student is only entitled to minimal due process consisting of “oral or written notice of charges against him and, if he denies them, an explanation of the evidence the authorities have and an opportunity to present his side of the story.” (Goss v. Lopez, supra, 419 U.S. 565, 581, 95 S.Ct. 725, 739.) Goss, however, cautioned that “longer suspensions or expulsions for the remainder of the school term, or permanently, may require more formal procedures.” (Id., at p. 584, 95 S.Ct. at p. 741.) The question we must decide is whether the additional safeguards contemplated by the phrase “more formal procedures” include confrontation and cross-examination.

The Supreme Court has enunciated the doctrine that “due process is flexible and calls for such procedural protections as the particular situation demands,” that “not all situations calling for procedural safeguards call for the same kind of procedure.” (Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484.) In determining what due process safeguards must be accorded in a given context, the high court has adopted an interest-balancing approach. (Cafeteria Workers v. McElroy, 367 U.S. 886, 895, 81 S.Ct. 1743, 1748, 6 L.Ed.2d 1230; see Tribe, American Constitutional Law, (1978) s 10-13, pp. 539-541.) “ ‘Whether the Constitution requires that a particular right obtain in a specific proceeding depends upon a complexity of factors. The nature of the alleged right involved, the nature of the proceeding, and the possible burden on that proceeding, are all considerations which must be taken into account.’ ” (Jenkins v. McKeithen, 395 U.S. 411, 426, 89 S.Ct. 1843, 1851, 23 L.Ed.2d 404, quoting Hannah v. Larche, 363 U.S. 420, 442, 80 S.Ct. 1502, 1514, 4 L.Ed.2d 1307.)

The interest-weighing approach has resulted in varying safeguards in different situations depending in a large measure on the court's conception of the importance of the property or liberty interest affected by the governmental action. For example, the court has held that due process mandates that the hearing accorded a welfare recipient before aid is terminated must afford the recipient the opportunity to confront and cross-examine witnesses relied upon by the department and the right to be heard through retained counsel. (Goldberg v. Kelly, 397 U.S. 254, 269-271, 90 S.Ct. 1011, 1021, 25 L.Ed.2d 287.) In parole revocation proceedings, minimal due process has been held to include the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation) (Morrissey v. Brewer, supra, 408 U.S. 471, 489, 92 S.Ct. 2593, 2604) and the right to be represented by counsel (Gagnon v. Scarpelli, 411 U.S. 778, 786, 93 S.Ct. 1756, 1761, 36 L.Ed.2d 656).

In other contexts, the high court has determined that due process demanded fewer procedural safeguards. Thus, due process for a prisoner facing deprivation of good time credits as a disciplinary measure has been held to include notice, opportunity to be heard and to present evidence but, because of the “potential for havoc inside the prison walls,” not the right of confrontation and cross-examination. (Wolff v. McDonnell, 418 U.S. 539, 566-567, 94 S.Ct. 2963, 2976, 41 L.Ed.2d 935.) In Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18, the court held that due process did not require an evidentiary hearing before termination of disability benefits under the Social Security Act. It concluded that because eligibility for disability benefits was not based on financial need, as was welfare eligibility, and the person whose disability benefits were cut off prior to a hearing would not necessarily be deprived of the very means to live while awaiting a hearing, due process was met by post-termination hearing. (Id., at pp. 340-341, 96 S.Ct. at 905.) The court also noted that continuance of disability benefits was premised in most cases on reliable standard medical reports, so that the potential value of an evidentiary hearing was far less than in welfare cases. (Id., at pp. 343-344, 96 S.Ct. at 906.) In Board of Curators, Univ. of Mo. v. Horowitz, 435 U.S. 78, 98 S.Ct. 948, 55 L.Ed.2d 124, the court held that due process did not require a hearing before a medical student was dismissed for academic deficiencies as contrasted with dismissal for disciplinary reasons.

Recently in People v. Ramirez, 25 Cal.3d 260, 158 Cal.Rptr. 316, 599 P.2d 622, our Supreme Court expressed concern that the “federal approach under-values the important due process interest in recognizing the dignity and worth of the individual by treating him as an equal, fully participating and responsible member of society.”⁹ (Id., at p. 267, 158 Cal.Rptr. 316, 599 P.2d 622.) The court then listed the interests which generally should be considered and weighed in analyzing the dictates of the due process clause in a given context: “(1) (T)he private interest that will be affected by the official action, (2) the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards, (3) the dignitary interest in informing individuals of the nature, grounds and consequences of the action and in enabling them to present their side of the story before a responsible governmental official, and (4) the governmental interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.” (People v. Ramirez, supra, 25 Cal.3d 260, 269, 158 Cal.Rptr. 316, 599 P.2d 622.) We apply the suggested analysis in determining whether the right of confrontation and cross-examination is an essential ingredient of due process for expulsion from a public school.

(1) The Student's Interest :

The student's interest affected by expulsion is the right to public education. In this state, public education is provided by statute in response to a state constitutional mandate. (Cal.Const., art. IX, ss 1, 5; Abella v. Riverside Unified Sch. Dist., 65 Cal.App.3d 153, 167, 135 Cal.Rptr. 177.) Public education has long been recognized in California as a “legal right-as distinctively so as the vested right in property owned is a legal right, and as such it is entitled to be protected by all the guarantees by which other legal rights are protected and secured to the possessor.” (Ward v. Flood, 48 Cal. 36, 50; Piper v. Big Pine School District, 193 Cal. 664, 670, 226 P. 926; Abella v. Riverside Unified Sch. Dist., supra, 65 Cal.App.3d 153, 167-168, 135 Cal.Rptr. 177.) For equal protection analysis, our state high court has classified the right to public education as a fundamental interest because of its importance in “preserving an individual's opportunity to compete successfully in the economic market place, despite a disadvantaged background.” (Serrano v. Priest, 5 Cal.3d 584, 609, 96 Cal.Rptr. 601, 487 P.2d 1241; Crawford v. Board of Education, 17 Cal.3d 280, 297, 130 Cal.Rptr. 724, 551 P.2d 28.) Public schools have been termed “the bright hope for entry of the poor and oppressed into the mainstream of American society.” (Serrano v. Priest, supra, 5 Cal.3d 584, 609, 96 Cal.Rptr. 601, 487 P.2d 1241.) Expulsion from the public educational process thus can have a lifelong impact on a student's welfare. In our judgment, the interest of a student facing expulsion deserves as much if not greater protection than that accorded to a welfare recipient's interest in the continuation of aid or a parolee's interest in remaining on restricted liberty.

(2) The Risk of Erroneous Governmental Decision :

Denial of the opportunity to confront and cross-examine adverse witnesses in an expulsion proceeding exposes the student to risk of erroneous deprivation of his educational interest where as here, the decision turns on factual issues the correct resolution of which depends on credibility of witnesses. The importance of the principle of confrontation and cross-examination to our constitutional jurisprudence has been eloquently expressed in Greene v. McElroy, 360 U.S. 474, 496-497, 79 S.Ct. 1400, 1413, 3 L.Ed.2d 1377, where the court said: “ ‘Certain principles have remained relatively immutable in our jurisprudence. One of these is that where governmental action seriously injures an individual, and the reasonableness of the action depends on fact findings, the evidence used to prove the Government's case must be disclosed to the individual so that he has an opportunity to show that it is untrue. While this is important in the case of documentary evidence, it is even more important where the evidence consists of the testimony of individuals whose memory might be faulty or who, in fact, might by perjurers or persons motivated by malice, vindictiveness, intolerance, prejudice, or jealousy. We have formalized these protections in the requirements of confrontation and cross-examination. They have ancient roots. They find expression in the Sixth Amendment This Court has been zealous to protect these rights from erosion. It has spoken out not only in criminal cases, but also in all types of cases where administrative actions were under scrutiny.’ ” (Goldberg v. Kelly, supra, 397 U.S. 254, 270, 90 S.Ct. 1011, 1021, quoting Greene v. McElroy, supra, 360 U.S. 474, 496-497, 79 S.Ct. 1400, 1413.)

(3) A Student's Dignitary Interest :

A student, no less than an adult, is entitled to have the government respect his liberty interest to be free from arbitrary governmental action. Public school children do not “shed their constitutional rights at the school house gate.” (Tinker v. Des Moines Community School Dist., 393 U.S. 503, 506, 89 S.Ct. 733, 739, 21 L.Ed.2d 731.) “Students in school as well as out of school are ‘persons' under our Constitution. They are possessed of fundamental rights which the state must respect, just as they themselves must respect their obligations to the state.” (Tinker v. Des Moines Community School Dist., supra, 393 U.S. 503, 511, 89 S.Ct. 733, 739.) Deprivation of a student's educational interest without according him one of the most basic constitutional procedural safeguards simply because he is a student disparages his dignitary interest as a person.

(4) The Governmental Interest :

We discern little fiscal impact on schools by requiring them to observe the procedural safeguards of confrontation and cross-examination. Expulsion hearings may become a bit more protracted by whatever financial consequence this may have cannot outweigh the student's right to a fair hearing comporting with constitutional standards.

The district argues that schools have an interest in maintaining control and discipline “free from burdensome hearing procedures.” In the court below, the district filed voluminous affidavits from its school administrators to show that confrontation should not be required because it would dissuade students through fear of retaliation from reporting incidents, particularly of violent behavior, calling for disciplinary action. We do not minimize the importance of the school district's interest in maintaining discipline and eliminating crime and violence from its campuses. However, under the factual situation presented in this case, there was no showing that confrontation would have created a danger to witnesses or caused a breakdown in discipline. Due process is not insensitive to those interests. For example, it permits disciplinary actions involving suspensions for brief periods to be taken with only minimal procedural safeguards. Here, however, we are dealing with a far more serious deprivation. Plaintiff was expelled for the balance of the school year which, when added to the period of his suspension, resulted in his loss of almost three-fourths of the school year.

While violence in some school systems has reached alarming proportions, this is not a justification for denying students faced with expulsion the basic due process safeguard of confrontation and cross-examination absent showing of risk of harm to witnesses any more than the prevalence of crime and violence in our society at large would justify curtailment of constitutional safeguards to one charged with a crime. As one commentator cogently observed: “Crime and violence, often associated with racial tension, are becoming problems of frightening proportions in many school systems. These phenomena are likely to be accompanied by an increase in the number of discipline cases and, inevitably, by pressure for ‘toughness.’ Popular impatience with the activities of students increases the possibility of unfair treatment and heightens the importance of providing an accused student with procedural safeguards designed to secure a fair determination that misconduct has occurred and that a particular disciplinary sanction is appropriate.” (Buss, Procedural Due Process for School Discipline: Probing the Constitutional Outline (1971) 119 U.Pa.L.Rev. 545, 549-550; fns. omitted.)

In Greene v. McElroy, supra, 360 U.S. 474, 79 S.Ct. 1400, an employee was discharged from his private employment after losing his federal security clearance. In order to protect the anonymity of government informers in the name of national security, a defense department regulation denied the employee an opportunity to cross-examine witnesses whose testimony was used to support the revocation of his security clearance. Although the court invalidated the departmental regulation for lack of explicit statutory authority, it expressed its concern over the constitutionality of the regulation by stating that where administrative action raises serious constitutional problems, the court must assume that those affected by the governmental action were intended to be afforded the traditional safeguards of due process. (Id., at pp. 506-507, 79 S.Ct. at p. 1418.) The clear message of Greene is that where an individual's fundamental interest is at stake only the most compelling governmental interest can justify withdrawal of the due process right of confrontation and cross-examination.¹⁰

The foregoing analysis persuades us that due process safeguards in an expulsion proceeding must include the opportunity to confront and cross-examine adverse witnesses in the absence of a finding that to do so would endanger the witness or witnesses. We so hold. Commentators have come to the same conclusion. (Buss, Procedural Due Process for School Discipline: Probing the Constitutional Outline, supra, 119 U.Pa.L.Rev. 545, 594-597, 609-602; Wilkerson, Goss v. Lopez, The Supreme Court As School Superintendent, 1975 Sup.Ct.Rev. 25, 39-40; Seavey, Dismissals of Students: “Due Process”, supra, 70 Harv.L.Rev. 1046, 1048; see C. Wright, The Constitution on the Campuses, 22 Vander.L.Rev. 1027, 1076 (confrontation and cross-examination should be available when the case hinges on the credibility of the witnesses).)

Although the question before us has apparently never been squarely addressed by the appellate courts of this state,¹¹ a federal district court in California has interpreted Goss as anticipating that a student facing expulsion should have the right to be heard through counsel, offer evidence in his own behalf and to confront and cross-examine adverse witnesses. (Gonzales v. McEuen (C.D.Cal.) 435 F.Supp. 460, 467.) In setting aside student expulsions from a California high school based on hearsay evidence, the court declared: “Although strict adherence to common law rules of evidence is not required in school disciplinary proceedings, where the student is faced with the severe sanction of expulsion, due process does not permit admission of ex parte evidence given by witnesses not under oath, and not subject to examination by the accused student.” (Id., at p. 469.)

Other federal courts are divided on the issue of confrontation and cross-examination. Some have held that a hearing incorporating that safeguard must be afforded in school expulsion proceedings. (Black Coalition v. Portland School District No. 1 (9th Cir.) 484 F.2d 1040, 1045; Mills v. Board of Education of District of Columbia (D.D.C.) 348 F.Supp. 866, 882-883; DeJesus v. Penberthy (D.Conn.) 344 F.Supp. 70, 75-76; Buttny v. Smiley (D.Colo.) 281 F.Supp. 280, 288; Esteban v. Central Missouri State College, 277 F.2d 649, 652.) Others have declined to accord that right. In Boykins v. Fairfield Board of Education, 492 F.2d 697, the Fifth Circuit declined to extend its decision in the landmark case of Dixon v. Alabama State Board of Education (5th Cir.) 294 F.2d 150 (cert. den. 368 U.S. 930, 82 S.Ct. 368, 7 L.Ed.2d 193), to require confrontation and cross-examination in school expulsion cases. Boykins, however, was decided before Goss. Whiteside v. Kay (W.D.La.) 446 F.Supp. 716, 720-711, interpreted Goss as not anticipating confrontation and cross-examination in expulsion cases, relying in part on Board of Curators, Univ. of Mo. v. Horowitz, supra, 435 U.S. 78, 98 S.Ct. 948, 55 L.Ed.2d 124, where the court held that due process did not require a hearing for an academic dismissal from medical school. Horowitz, however, took pains to distinguish academic dismissals from dismissal for disciplinary purposes. In Dillon v. Pulaski City Special Sch. Dist. (E.D.Ark.) 468 F.Supp. 54, 58, the court held that a student not permitted to confront and cross-examine teachers or administrators who accused him of wrongdoing was denied due process, but stated in dicta that confrontation and cross-examination of student accusers might be disallowed consistent with due process if reprisals were likely.

The district argues that confrontation and cross-examination should not be required because it lacks subpoena power. Lack of subpoena power cannot be an excuse for denying the right of confrontation and cross-examination where that right is constitutionally mandated. (In re Prewitt, 8 Cal.3d 470, 477, fn. 7, 105 Cal.Rptr. 318, 503 P.2d 1326; In re Melendez, 37 Cal.App.3d 967, 973, 112 Cal.Rptr. 755; see Buss, supra, at p. 547.)

III

The remaining question is whether plaintiff was denied the right of confrontation and cross-examination in his expulsion hearing.

The district presented no witnesses having personal knowledge of the events out of which the charge arose. The evidence consisted entirely of hearsay writings-the letter from the principal to the district superintendent and the vice principal's written report of his investigation, accompanied by signed statements from the students he interviewed. The vice principal was present at the hearing and answered a few questions from the members of the panel, but he was not a percipient witness to the incident. Plaintiff was thus not afforded the opportunity to confront and cross-examine the adverse witnesses.

There was no evidence that confrontation would have exposed the students who gave written testimony against the plaintiff to risk of injury. Indeed, the names of the hearsay declarants and their statements were made known to plaintiff so that had he intended to retaliate, he could have done so even though they did not appear at the hearing. Thus failure to afford plaintiff the opportunity to confront and cross-examine the students cannot be excused on the ground that it would have exposed the witnesses to harm.

The district's contention that plaintiff waived the right of confrontation and cross-examination by failing to object to the introduction of the hearsay evidence is without merit. The issue in this case is not whether the hearsay statements of the students interviewed by the vice principal were admissible; the issue is whether the truth of the charges may be established by such hearsay evidence without affording plaintiff the due process right of confrontation and cross-examination. “It is not the student's obligation to wrest due process from the (school board) but, rather, it is the (school board's) obligation to provide it.” (Gonzales v. McEuen, supra, 435 F.Supp. 460, 469; Fielder v. Bd. of Ed. of Sch. Dist., 346 F.Supp. 722, 730.) Moreover, a waiver of a constitutional right must be knowing, intelligent, and voluntary, whether in a criminal or civil proceeding. (D. H. Overmeyer Co. v. Frick Co., 405 U.S. 174, 185-186, 92 S.Ct. 775, 782, 31 L.Ed.2d 124; Brady v. United States, 397 U.S. 742, 748, 90 S.Ct. 1463, 1468, 25 L.Ed.2d 747; see Isbell v. County of Sonoma, 21 Cal.3d 61, 68-69, 145 Cal.Rptr. 368, 577 P.2d 188.) Waiver is not presumed; “courts indulge every reasonable presumption against waiver of fundamental constitutional rights.” (Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461; Ohio Bell Teleph. Co. v. Public Utilities Commission, 301 U.S. 292, 307, 57 S.Ct. 724, 731, 81 L.Ed. 1093; Isbell v. County of Sonoma, supra, 21 Cal.3d 61, 68-69, 145 Cal.Rptr. 368, 577 P.2d 188; Blair v. Pitchess, 5 Cal.3d 258, 274, 96 Cal.Rptr. 42, 486 P.2d 1242.) The record fails to show a waiver of the right of confrontation and cross-examination.

DISPOSITION

The judgment is reversed with directions to the trial court to issue a peremptory writ of mandate commanding the school district to expunge plaintiff's expulsion from his school record.

FOOTNOTES

1.  All section references in this opinion are to the Education Code unless otherwise indicated.Section 48904.5 provides that a principal may recommend a pupil for expulsion for any of the acts specified in section 48900 which includes: “(c) Caused, attempted to cause, or threatened to cause physical injury to another person ”

2.  Section 48914, subdivision (b), provides:“(b) Written notice of the hearing shall be forwarded to the pupil and the pupil's parent or guardian at least 10 days prior to the date of the hearing. Such notice shall include: the date and place of the hearing, a statement of the specific facts and charges upon which the proposed expulsion is based, a copy of all the rules of the district which pertain to discipline adopted pursuant to Section 35291, and the opportunity of the pupil or the pupil's parent or guardian to: appear in person or to employ and be represented by counsel, inspect and obtain copies of all documents to be used at the hearing, confront and question all witnesses who testify at the hearing, question all other evidence presented, and present oral and documentary evidence on the pupil's behalf, including witnesses.”

3.  Section 48914, subdivision (d), provides that the hearing may be conducted by the governing board, “county hearing officer,” a hearing officer from the Office of Administrative Hearings, or the board “may appoint an impartial administrative panel of three or more certificated employees of the district, none of whom shall be on the staff of the school in which the pupil is enrolled.”

4.  The principal's letter to the district superintendent also alluded to plaintiff's attendance problems and an earlier incident in which he allegedly struck another student in class.

5.  The trial judge stated that he thought the declarations should “be a part of the record,” but did not think they had any probative value in plaintiff's case. Plaintiff contends that the court erred in permitting the declarations to be introduced into evidence because the district failed to satisfy the requirements of Code of Civil Procedure section 1094.5, subdivision (e). In view of our disposition of this appeal on another ground, it is unnecessary for us to decide the issue.

6.  Article 1, section 7 of the California Constitution provides in relevant part:“A person may not be deprived of life, liberty or property without due process of law ”

7.  The school district urges that the superior court did not have jurisdiction in an administrative mandamus proceeding under Code of Civil Procedure section 1094.5 to consider constitutional attacks upon the expulsion statute. On this premise, the school district argues that the only issue properly before the trial court was the sufficiency of the evidence to support the expulsion. Accordingly, the district contends that readmission has rendered this appeal moot. The contention is manifestly without merit. The law is clear that the constitutionality of a statute under which an agency operates may be properly raised in an administrative mandamus proceeding. (State of California v. Superior Court (Veta), 12 Cal.3d 237, 251, 115 Cal.Rptr. 497, 524 P.2d 1281; Mobil Oil Corp. v. Superior Court, 59 Cal.App.3d 293, 307, 130 Cal.Rptr. 814.)

8.  Section 48914, subdivision (b), provides that the pupil or his parent shall have the opportunity to “confront and question all witnesses who testify at the hearing.” This does not assure confrontation and cross-examination because it does not require the school to call witnesses to support the expulsion charge.

9.  Professor Tribe has voiced a somewhat similar concern over the federal interest-balancing approach. He states: “Like many other provisions of the Constitution, the due process requirement presented a decision on the part of the Framers to safeguard certain rights and values, those considered fundamental in a free society and yet unusually vulnerable to the risk of denial by the majority. Adequate protection of such ‘core’ concerns cannot be afforded by ‘balancing’ the general interests of the majority against those of the individual. Here as elsewhere the Court should decline the ‘invitation to engage in a utilitarian comparison of public benefit and private loss.’ ” (Tribe, American Constitutional Law (1978) p. 543, fns. omitted.)

10.  We recognize that school districts have a compelling interest in curbing crime and violence on campuses. Nothing in this opinion is intended to preclude a school district from adopting procedural rules for expulsion cases which provide that school authorities may produce evidence before the hearing panel or officer, in camera, to show that confrontation will result in exposure of witnesses to risk of harm because of conditions on school district campuses and that if the hearing panel or officer so finds, confrontation shall not be required. The rules shall provide that in such event alternative procedures to be prescribed by the rules which assure a fair hearing shall be followed.

11.  Two Courts of Appeal have dealt with the issue tangentially in the public university setting. In Goldberg v. Regents of the University of California, 248 Cal.App.2d 867, 882-884, 57 Cal.Rptr. 463, the reviewing court noted with approval the fact that plaintiffs had been given the opportunity to cross-examine the university witnesses and were afforded other procedural protections. In Anderson v. Regents of University of California, 22 Cal.App.3d 763, 773, 99 Cal.Rptr. 531, the court seemed to be of the view that students were not entitled to the right of confrontation, but in any event determined that they had waived their right to confrontation and cross-examination by failing to object to the hearsay evidence at the administrative hearing. Both Goldberg and Anderson predated Goss v. Lopez, supra.

TAMURA, Acting Presiding Justice.

McDANIEL and MORRIS, JJ., concur.