TO BE PUBLISHED IN THE OFFICIAL REPORTS

OFFICE OF THE ATTORNEY GENERAL State of California

DANIEL E. LUNGREN Attorney General

______________________________________ OPINION : : No. 97-903 of :

: December 5, 1997 DANIEL E. LUNGREN : Attorney General :

: GREGORY L. GONOT : Deputy Attorney General :

:

______________________________________________________________________

THE HONORABLE DICK MONTEITH, MEMBER OF THE CALIFORNIA STATE ASSEMBLY, has requested an opinion on the following question:

May a school district adop t a "zero toleran ce" policy mandating expulsion of a student for a first offense involving the possess ion of a controlled substance or alcohol?

CONCLUSION

A school district may not adopt a "zero to lerance" policy manda ting expulsion of a student for a first offense involving the possess ion of a controlled substance or alcohol. Such an automatic expulsion policy would cont ravene state law as explicitly determined by the Legislature.

ANALYSIS

The Legislature has enacted a comprehensive statutory scheme (Ed. Code, §§ 48900-48926) Footnote No. 1 governing the suspension and expulsion of pupils from elementary and secondary schools. "Suspensi on" is defined as the "removal of a pupil from ongoing instruction for adjustment purposes . . ." (§ 48925, subd. (d)), is limited to five consecutive days (§ 48911, subd. (a)), and may be imposed by the school principal or the district superintendent on the basis of an informal conference with the pupil (§ 48911 subd. (b)). "Expulsion" is the "r emoval of a pupil from (1) th e immediate supervision and control, or (2) the general supervision, of school personnel . . . ." (§ 48925, subd. (b).)Expulsion, as the most drastic measure a school district may take in response to student offenses, "must be exercised with great care." (57 Ops.Cal.Atty.Gen. 439, 441 (1974).)
Footnote No. 2

We are asked whether a school district may adopt a "zero toleran ce" policy requiring the expulsion of any student who commits a controlled substance or alcohol possession offense, even if the student has no prior r ecord. We conclude that such an automatic expulsion policy would cont ravene state law.

Expulsion requires a hearing for the pupil a nd his or her parent or guardian before the governing board of the school district (§ 48918, subd. (a)), a hearing officer, or administrative panel (§ 48918, subd. (d)) within30 schooldays from the date of the expulsion recommendation made by the school prin cipal or the district superintendent (§ 48918, subd. (a)) and may be appealed to the county board of education (§ 48919).

The offenses that may result in expuls ion--including expulsion for the possession, use, sale, or provision of a c ontrolled substance or an alcoho lic beverage or intoxicant-- are set forth in section 48900:

"A pupil may not be suspended from sc hool or recommended for expulsion unless the superintendent or the principal of the sc hool in which the pupil is enrolled determines that the pupil has:

". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

"(c) Unlawfully possessed, used, sold, or otherwise furnished, or been under the influence of any controlled substance . . , analcoholic beverage, or an intoxicant of any kind.

". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ."

With specific regard to expulsions for offenses involving controlled s ubstances or alcohol, section 48915 provides:

"(a) Except as provided in s ubdivision[] (c) . . . , the prin cipal or the superintendent of schools shall recommend the expulsion of a pupil for any of the following acts committed at school or at a school activity off school grounds, unless the principal or superintendent finds that expul sion is inappropriate, due to th e particular circumstance:

". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

"(3) Unlawful possession of a controlled substance . . . , except for the first offense for the possession of not more than one a voirdupois ounce of mar ijuana, other than concentrated cannabis.

". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ."(b) Upon recommendation by the principal, superintendent of schools, or by a hearing officer or administra tive panel appointed pursuant to subdivision (d) of section 48918, the governing board may order a pupil expelled upon finding that the pupil committed an act listed in subdivision (a) or in subdivision . . . (c) . . . of section 48900. A decision to expel shall be based on a finding of one or both of the following:

"(1) Other means of correcti on are not feasible or have repeatedly failed to bring about proper conduct.

"(2) Due to the nature of the act, the presence of the pupil causes a continuing danger to the physical safety of the pupil or others.

"(c) The principal or superintendent of schools shall immediately suspend . . . and shall recommend expulsion of a pupil that he or she determines has committed any of the following acts at school or at a school activity off school grounds:

". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

"(3) Unlawfully selling a c ontrolled substance . . . .

". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

"(d) The governing board shall order a pupil expelled upon finding that the pupil committed an act listed in subdivision (c) . . . .

". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ."

Section 48914 requires the governing board of eachschool district to establish rules and regulations governing procedures for the expulsion of pupils.

The proposed zero tolerance policy, as contemplated in the question presented, would call for the principal or superintende nt to recommend expulsion of a student for the first instance of any of the offenses i nvolving controlled substances or alcohol, and for the district board to decide in favor of the recommended action by finding either that "[o]ther means of correction ar e not feasible" (§ 48915, subd. (b)(1)) or th at "[d]ue to the nature of the act, the presen ce of the pupil causes a continuing danger to the physical safety of the pupil or to others" (§ 48915, s ubd. (b)(2)). Drug and alcohol offenses would be treated as automatically meeting one of these criteria.

A school district may, it is argued, reas onably conclude that because of an intractable and ongoing drug problem at its sc hools, other means of correction are not feasible, particularly where notwithstandi ng repeated and emphatic warnings against student involvement with drugs and alcohol, th e pupil has knowingly viol ated the rules. It is also argued that because of the impaired physical and mental state that drugs and alcohol can produce, particularly in imp ressionable young persons who are not fully cognizant of their limits, the natu re of the offense is such th at the presence of a pupil whohas knowingly violated the zero tolerance pol icy represents a continuing danger to the physical safety of other pupils. Thus, it is contended that any violation of the zero tolerance policy may be treate d by the district board as sa tisfying one or both of the criteria set forth in section 48915, subdivision (b).

In effect, the proposed zero tolerance po licy would mean that the principal, the superintendent, and the district board must treat the first offe nse as leading inexorably to expulsion because the district has concluded th at any drug or alcohol offense inherently meets the criteria of section 48915, subdivision (b). As part of the zero tolerance policy, all students would be given explicit warning as to the consequences of a violation. The deterrent effect of the policy would be base d upon the students' knowledge that the first instance of any of the offenses involving controlled substanc es or alcohol would, without exception, result in expulsion.

In determining whether the proposed local school policy would be consistent with state law, we look to well-established pr inciples of statutor y construction when interpreting the controlling language of sections 48900-48926. As explained by the Supreme Court in Dyna-Med., Inc. v. Fair Employment and Housing Com. (1987) 43 Cal.3d 1379, 1386-1387:

"Pursuant to established principles, our fi rst task in construi ng a statute is to ascertain the intent of the Legislature so as to effectuate the purpose of the law. In determining such intent, a court must look fi rst to the words of the statute themselves, giving to the language its usual, ordinary import and according significance, if possible, to every word, phrase and sentence in pursuance of the legislative purpose. A construction making some words surplusage is to be avoided. The words of the statute must be construed in context, keeping in mind the statutory purpos e, and statutes or statutory sections relating to the same subj ect must be harmonized, both internally and with each other, to the extent possible. [Cita tions.] Where uncertainty exists consideration should be given to the consequences that will flow from a particular interpretation. [Citation.] Both the legislative history of the statute and the wider historical circumstances of its enactment may be consid ered in ascertaining the legislative intent. [Citation.]"

Initially, we observe that s ection 48915 identifies one situ ation in which an offense involving controlled substances must result in expulsion. The pr incipal or superintendent "shall" immediately suspend and "shall" r ecommend expulsion of a pupil who he or she determines has committed the act of unlawfully selling a controlled substance at school or at a school activity off school grounds. (§ 48915, subd. (c)(3).) Th e governing board of the district "shall" order such pupil expe lled upon finding that the pupil did commit the offense in question. (§ 48915, subd. (d).) Expulsion is also mandated for three other offenses that directly involve physical safety. Footnote No. 3 Non-sale offenses involving controlled substances require that the prin cipal or superintendent "recommend" expulsion, unless the responsible official "f inds that expulsion is inappr opriate, due to the particular circumstance." (§ 48915, subd. (a).) This legisl ative directive, however, does not apply to"the first offense for the possession of not mo re than one avoirdupoi s ounce of marijuana, other than concentrated ca nnabis." (§ 48915, subd. (a)(3).)

The district board "may," upon reco mmendation of the principal or the superintendent, order a pupil expelled upon fi nding that the pupil committed one of the acts in question. (§ 48915, subd. (b).) However, as noted previously, such decision must be based upon a finding that other means of corr ection are not feasible or have repeatedly failed to bring about prop er conduct (§ 48915, subd. (b)(1)) Footnote No. 4 or that, due to the nature of the act, the presence of the pupil would cau se a continuing danger to the physical safety of the pupil or others. (§ 48915, subd. (b)(2).)

With regard to the finding set forth in subdivision (b)(1) of section 48915, the district would necessarily rely on a lack of success in utilizing othe r means of correction for drug and alcohol offenses. We believe such past experience must be with respect to the particular pupil whose expulsion proceeding is before the district. For example, a pupil whose record suggests a tractable nature or who demo nstrates genuine remorse for his or her actions may be suspended (§ 48900.5) or required to perform community service on school grounds during nons chool hours (§ 48900.6). A finding under subdivision (b)(1) of section 48915 that does not take into account individualized circumstances may deny the pupil's right to due process. (See Garcia v. Los Angeles County Bd. of Education (1981) 123 Cal.App.3d 807, 810-813.)

Under subdivision (b)(2) of s ection 48915, the inquiry is wh ether, in view of the nature of the act, the continue d presence of the pu pil would pose a risk to the physical safety of the pupil or others. This finding, w ith its focus on the nature of the act, lends itself to a more categorical approach. Howeve r, a rational connection must still be made between the presence of the student on cam pus and a continuing danger to the physical safety of the pupil or others. (See Tot v. U.S. (1943) 319 U.S. 463, 466-468; Rafaelliv. Committee of Bar Examiners (1972) 7 Cal.3d 288, 291-301; Mike Moore's 24-Hour Towing v. City of San Diego (1996) 45 Cal.App.4th 1294, 1306.) Drug or alcohol use by its very nature poses a danger to the physical safe ty of the user, particul arly if the user is a minor. Those who must interact with one who uses drugs or alcohol may also be at risk as to their physical safety. However, it woul d be difficult to conclude that the offending pupil must be removed from the school in orde r to avert a continuing danger to his or her physical safety or that of other pupils in all cases

. Leaving aside questions of ar bitrariness and lack of ev identiary support, the fatal flaw we find in the proposed policy is that it is in conflict with the Legislature's determination that mandatory expulsion is for the most serious offenses, namely, possessing, selling, or otherwise furnishing a firearm; brandishing a knife at another person; unlawfully selling a controlled substance; or committing or attempting to commit a sexual assault or battery. (§ 48915, subd. (c). ) Indeed, the Legislature does not even direct consideration of expulsion for a ll drug offenses; it excepts from such administrative action a first offense posse ssion of one ounce or less of marijuana. (§ 48915, subd. (a)(3).) Footnote No. 5 Other than with respect to the four extremelyserious offenses listed in section 48915, subdi vision (c)(3), a district may not refuse to exercise the discretionary authority gran ted to it under the statutory scheme.

Instead, the Legislature inte nded a case-by-case applicati on of the criteria set forth in section 48915, subdivision (b), since an expulsion results in such serious consequences for the student and for the district in term s of the alternative educational arrangements that must be made for the expelled student. (See § 48916.) We also note that the use of an automatic approach in dealing with drug a nd alcohol offenses would make subdivision (b)(2) of section 48915 virtually meaningless. If every drug or alcohol possession offense may be deemed to cause a continuing danger to the physical safety of the pupil or others, so also may the other offenses listed insubdivision (a) of section 48915, since they involve the infliction of physical injury or the threat thereof. In order for subdivision (b)(2) of the statute to have any real signi ficance, the offenses least likely to produce a direct physical threat (e.g., a first time alcohol possession o ffense) must be viewed as eligible for diversion of the student into disciplinary channels other thanexpulsion. To remove offenses from consideration of non- expulsion disciplinary action simply because they involve drugs or alcohol would make suchoffenses subject to harsher treatment than, for example, causing serious physical injury to a pupil in a schoolyard gang attack. The Legislature has already decide d that only one particular drug offense warrants mandatory expulsion--the sale of a controlled substance. (§ 48915, subd (d ).) A school district may not undermine such legislative determination in fashioning its own mandatory expulsion policy.

Accordingly, we conclude that a school district's proposed ze ro tolerance policy which would mandate expulsion for a first o ffense involving possessi on of a controlled substance or alcohol would be inconsistent w ith state law governing expulsions of school students and therefore may not be adopted by a school district.

* * * * *

Footnote No. 1 All section references herein are to the Education Code. Footnote No. 2 In 80 Ops.Cal.Atty.Gen. 85, 87-88 (1997), we concluded that a school district may suspend the enforcement of an expulsion order. Footnote No. 3 These offenses are: possessing, selling, or otherwise furnishing a firearm; brandishing a knife at another person; and committing or attempting to commit a sexual assault or committing a sexual battery. (§ 48915, subd. (c)(1), (2), (4).) Footnote No. 4 As we are concerned here with first offenses, the sec ond clause of section 48915, subdivision (b)(1) would not, as a practical matter, be available as a ba sis for the district's decision to expel. Footnote No. 5 We also note that the Legislature has explicitly recognized suspension as an appropriate disciplinary measure for a first offense involving a controlled substance or alcohol. Section 48900.5 provides in part as follows:

"Suspension shall be imposed only when other means of correction fail to bring about proper conduct. However, a pupil . . . may be suspended for any of the reasons enumerated in Section 48900 upon a firstoffense, if the principal or superintendent of schools determines that the pupil violated subdivision (a), (b), (c), (d), or (e) of Section 48900 or that the pupil's presence causes a danger to persons or property or threatens to disrupt the instructional process."