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									     THE LAW OFFICE OF JOHNSON & JOHNSON
 1   PETER JOHNSON 165523
     CARIN JOHNSON 165458
 2   801Ygnacio Valley Rd., Ste. 230
     Walnut Creek, CA 94596
 3   (925) 952.8900
 4   Attorney for Petitioners
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 6                              SUPERIOR COURT OF CALIFORNIA
                                  COUNTY OF CONTRA COSTA
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     HERITAGE STUDENTS, et. al.,                  Case No.
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                   Petitioners,                   Declaration in Support of Writ of Mandamus
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                                                  And Ex-Parte Application for Stay of
              v.                                  Suspension
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     LIBERTY UNION HIGH SCHOOL
12   DISTRICT, HERITAGE HIGH SCHOOL,
     ERIC L. VOLTA, (SUPERINTENDENT),
13   LARRY OSHODI, (PRINCIPAL) and does
     1-20 inclusive.
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                   Respondents.
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16                  DECLARATION OF COUNSEL IN SUPPORT OF
            EX-PARTE APPLICATION FOR WRIT OF MANDAMUS AND STAY OF
17                                SUSPENSION
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     I, Peter Johnson, hereby declare:
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        1. I am an attorney, duly authorized to practice before the Courts of the State of
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            California and have been retained by plaintiff’s herein.
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        2. The Petitioners herein (Hereafter known as the “Heritage Students” are all
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            similarly situated. They are a group of students in their senior year at Heritage
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            High School of the Liberty Union High School District in Brentwood, Contra Costa
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            County. The Heritage students are in the final week of their Senior Year. Each of
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        them has final exams scheduled this week. The Heritage Students have been
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        suspended and are being denied the opportunity to take their final exams.
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 3   3. The Heritage Students are Petitioners:

 4         a. Petitioner XXXXXXXXXXX attends Heritage High School in Brentwood,

 5            within the Liberty Union High School District; XXXXXXXXX is a senior and

 6            is currently suspended and therefore unable to complete finals this week.
 7            This will deprive him of his ability to graduate this semester as scheduled
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              or substantially affect his final grades. XXXXXXXXX has been suspended
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              from school without just cause and without due process;
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           b. Plaintiff, XXXXXXXX attends Heritage High School in Brentwood, within
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              the Liberty Union High School District; XXXXXXXXX is a senior and is
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              currently suspended and therefore unable to complete finals this week.
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              This will deprive him of his ability to graduate this semester or
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              substantially affect his final grades. XXXXXXXXX has been suspended

16            from School without just cause and without due process;

17         c. Plaintiff, XXXXX is a minor XXXXX attends Heritage High School in

18            Brentwood, within the Liberty Union High School District; XXX is a senior

19            and is currently suspended and therefore unable to complete finals this
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              week. This will deprive him of his ability to graduate this semester or
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              substantially affect his final grade. XXXX has been suspended from
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              School without just cause and without due process;
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           d. Plaintiff XXXX is a minor. XXXX attends Heritage High School in
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              Brentwood, within the Liberty Union High School District; XXXX is a senior
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        and is currently suspended and therefore unable to complete finals this
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        week. This will deprive her of her ability to graduate this semester or
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 3      substantially affect her final grades. XXXX has been suspended from

 4      School without just cause and without due process;

 5   e. Plaintiff, XXXXXXXXXX attends Heritage High School in Brentwood,

 6      within the Liberty Union High School District; XXXXX is a senior and is
 7      currently suspended and therefore unable to complete finals this week.
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        This will deprive him of his ability to graduate this semester or
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        substantially affect his final grades. XXXXX has been suspended from
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        School without just cause and without due process;
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     f. Petitioner, XXX is a minor. XXX attends Heritage High School in
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        Brentwood, within the Liberty Union High School District; XXX is a senior
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        and is currently suspended and therefore unable to complete finals this
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        week. This will deprive him of his ability to graduate this semester or

16      substantially affect his final grade. XXXX has been suspended from

17      School without just cause and without due process;

18   g. Petitioner, XXXXXX attends Heritage High School in Brentwood, within the

19      Liberty Union High School District; XXXXX is a senior and is currently
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        suspended and therefore unable to complete finals this week. This will
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        deprive him of his ability to graduate this semester or substantially affect
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        his final grades. XXXXXX has been suspended from School without just
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        cause and without due process;
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     h. Plaintiff, XXXXX is a minor XXXXX attends Heritage High School in
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          Brentwood, within the Liberty Union High School District; XXXXXX is a
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 3        senior and is currently suspended and therefore unable to complete finals

 4        this week. This will deprive her of her ability to graduate this semester or

 5        substantially affect her final grade. XXXXX has been suspended from

 6        School without just cause and without due process;
 7   i. Petitioner, XXXXXXXX attends Heritage High School in Brentwood, within
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          the Liberty Union High School District; XXXXXXX is a senior and is
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          currently suspended and therefore unable to complete finals this week.
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          This will deprive him of his ability to graduate this semester or
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          substantially affect his final grades. XXXXXXXX has been suspended from
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          School without just cause and without due process;
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     j.   Petitioner, XXXXXX attends Heritage High School in Brentwood, within
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          the Liberty Union High School District; XXXXXXXX is a senior and is

16        currently suspended and therefore unable to complete finals this week.

17        This will deprive him of his ability to graduate this semester or

18        substantially affect his final grades. XXXXXXXX has been suspended from

19        School without just cause and without due process;
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     k. Petitioner, XXXXX is a minor. XXXX attends Heritage High School in
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          Brentwood, within the Liberty Union High School District; XXXX is a senior
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          and is currently suspended and therefore unable to complete finals this
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          week. This will deprive her of her ability to graduate this semester or
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               substantially affect her final grade. XXXX has been suspended from
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               School without just cause and without due process;
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 3         l. Petitioner, XXXXXX attends Heritage High School in Brentwood, within

 4             the Liberty Union High School District; XXXXXX is a senior and is

 5             currently suspended and therefore unable to complete finals this week.

 6             This will deprive him of his ability to graduate this semester or
 7             substantially affect his final grades. XXXXXXX has been suspended from
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               School without just cause and without due process;
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     4. I am informed and believe and thereon allege, that on or about June 1, 2012
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        approximately 84 students have been accused of participating in one of three
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        “school pranks” at Heritage High School in the Liberty Union High School District,
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        Brentwood, California, Contra Costa County. Despite 84 students being accused
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        less then one half have been suspended.
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     5. The three “pranks” identified by the School Superintendent (Respondent, Eric

16      Volta) before a group of parents this morning, June 4, 2012 (I was personally

17      present for the meeting and heard the following):

18         a. A sheep was tethered to a flag pole with 2012 painted on it;

19         b. There was footprints of washable paint at various areas of campus;
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           c. Several Banners were removed and displaced.
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     6. Eric Volta then stated the basis for supporting the suspensions of the students:
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           a. Coyotes could have come down from the hills and eaten the sheep;
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           b. The Banner’s could have been set on fire;
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           c. One of the students could have mistakenly used permanent paint;
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     7. It should be noted NO HARM came to the Sheep;
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     8. It should be noted the banner’s were all retrieved without being harmed;
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 3   9. It should be noted washable paint was used and has all been removed;

 4      (according to the Superintendent 6 hours of staff time was expended)

 5   10. It should be noted that NONE OF THE CONCERNS identified by the

 6      superintendent in paragraph 12 above actually occurred, but just that “they could
 7      have” according to Mr. Volta.
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     11. Mr. Volta made it clear he wanted to set an example with this incident and that
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        this would somehow serve as a deterrent in the future.
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     12. I am informed and believe that students have been suspended without any
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        written notice of suspension, without the formal conference required under the
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        education code, without any opportunity to present a defense on their behalf and
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        without written notification to their parents as required by law.
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     13. Of the 12 students that are currently part of this Petition, no parents have been

16      given a conference with the administration as required by the Education Code.

17   14. Students have and are receiving 5 days suspensions. The 5 days suspension

18      includes every day when they are scheduled to complete finals.

19   15. On June 4, 2012 Superintendent Volta was asked specifically by counsel
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        whether he intended to advise parents of their right to be present at a formal
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        conference regarding the suspensions as required by the Education Code.
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        Superintendent Volta specifically stated “we are still trying to figure that out”.
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        Superintendent Volta specifically stated “there are too many and we are still
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        trying to sort out how we can proceed”.
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     16. Counsel then raised the issue of alternative means to accomplish the goals of the
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        District regarding punishment of the students but accommodating the need to
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 3      complete finals this week. Superintendent Volta stated that “whether or not the

 4      students will be allowed to take finals will be up to the individual teachers.”

 5   17. Superintendent Eric Volta made it very clear that the District was not willing to

 6      take steps to ensure the students were able to complete their finals and that if the
 7      teachers said “no” so be it. Superintendent Volta very clearly stated that “some
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        students will probably not be able to take their finals, its up to the teachers.”
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        Counsel requested that the District take some action to facilitate the ability of the
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        students to take finals. Volta stated the District would not get involved.
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     18. Counsel suggested that the students could make themselves available off
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        campus or after hours to take the finals. This was rejected.
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     19. Counsel suggested that the District withhold the diplomas but allow the students
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        to take the exams while the School District determines how it is going to deal with

16      these matters. This was rejected.

17   20. Many of the 20 or so parents present at the informal meeting voiced great

18      concern that leaving this to the teacher’s discretion was problematic. For

19      example, one parent reported that her son told her one of his teachers stated,
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        “you F*&^’d the school now I am going to F*&% you.” It is anticipated that
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        teacher will not let the student take his final. Another teacher (Bio-tech class)
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        stated to her class “If you don’t give a F*&% about the school, I’m not going to
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        F*%$ing teach you.” Another teacher (Chemistry) was reported as stating “If you
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        don’t give up who is part of this I am not going to teach you”. While these are
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        extreme examples, many other parents voiced similar reactions from teachers
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        issuing degrading or demeaning comments to the students that have been
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 3      suspended.

 4   21. Exhibit “A” attached hereto are some examples of teachers who have already

 5      responded to emails from students requesting an opportunity to take their final

 6      exams. NO TEACHER HAS ALLOWED A SUSPENDED STUDENT TO MAKE
 7      UP THEIR FINAL EXAM.
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     22. It should be noted the school did not call for or arrange the informal meeting,
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        rather several parents showed up this morning in an effort to get answers and
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        seek cooperation from the school district.
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     23. As an example of the manner in which this is being handled by school officials,
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        two students were pulled out of class right during the middle of their final on
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        Monday (6/4/12) morning and suspended. XXXXXXXX AND XXXXX The
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        students were required to give a statement and then told to leave campus. Their

16      parents were not notified of the action being taken and they were not given an

17      opportunity for a conference. The students were not allowed to complete their

18      finals.

19   24. No students’ parent was contacted and given the opportunity to attend a formal
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        conference as required by the education code in order to effectuate a
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        suspension.
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     25. I am informed and believe and thereon allege that none of the students herein
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        have any significant history of discipline or other adverse educational action.
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     26. A large concern for the students and parents in this matter is that the students
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        are not being treated equally. At the informal meeting, some parents voiced
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 3      concern that their children were incriminated based on hearsay statements and

 4      then suspended without the ability to provide information to the contrary.

 5   27. A further concern is that students who were honest and forthright about

 6      participating in the events have been suspended and those that lied have not.
 7   28. Superintendent Volta commented in response that the matter was still being
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        investigated.
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     29. A further concern was that there was disparate treatment amongst the students,
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        in essence students that are perceived as more liked or better students were not
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        suspended despite admission of involvement where other students who denied
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        participation were suspended nonetheless. Instances of this occurring included
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        students that participated side by side on the evening of the incident. Amongst
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        the students receiving preferential treatment students whose parents are

16      prominent members of the community and others who are involved in student

17      leadership activities who are highly regarded amongst the school staff. The

18      remaining students are not being given an individual case by case determination

19      of whether they should be suspended. I am informed and believe and thereon
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        allege that the two students escaping suspension stated in this example both
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        confessed to participating in the painting incident and were witnessed by
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        petitioners herein to in fact be participating in the incident.
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     30. I am informed and believe and thereon allege that on Friday June 1, 2012 the AP
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        Statistics teacher informed the class that any student that ended up being
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        suspended over the “prank” would not receive credit for the project they had
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        turned in the week prior unless they turned themselves in to administration and
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 3      admitted involvement in the incident.

 4   31. On Thursday May 31, 2012 Counsel made a written demand for a formal

 5      conference or hearing on behalf of student XXXXX. To date we have received

 6      no return communication regarding the request.
 7   32. Any delay in the administrative process will cause irreparable injury to the
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        students and in any event the administrative process does not afford an
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        adequate remedy for the students. At this point the District is not prepared to
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        conduct any hearings before the 5 day suspension imposed has been completed.
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        Finals began Monday, June 4, 2012. All suspended students have missed finals
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        scheduled thus far. Finals continue throughout the week. The only way to avoid
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        any further harm is to impose an immediate stay on the suspensions and
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        reinstate the students through the end of the week in order to avoid further

16      detriment and to require the school to allow the students to make up the finals

17      they missed. Examples of detriment which will occur amongst these students

18      include:

19          a. Lost Scholarships for at least two students in this group;
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            b. Exposure to withdrawn college acceptance (acceptance for two students
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               has occurred but is pending the requirement to maintain the current GPA
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               for several of the students in this group;
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            c. Permanent mark on transcripts affecting future college acceptance for the
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                 remaining students in the group who are all planning on attending junior
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 3               college and transferring to a 4 year college or university;

 4          d. Requirement to make up grades in future semesters;

 5          e. Not graduating;

 6   33. I have personally contacted the principal in an effort to seek an informal
 7      resolution to this matter including some alternative means of addressing the
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        concerns of the District. I have received no response from the Principal’s office
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        at this time.
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     34. I attempted to take up a conversation with the Superintendent this morning again
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        in an effort to work out some alternative means of resolving the matter without
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        the unnecessary harm being caused to these students. I approached Mr. Volta
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        very calmly and politely in this regard. Mr. Volta said he would not speak with
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        any attorney and walked out of the room.

16   35. I made a request of the School Board to conduct an emergency meeting to

17      resolve the issues pending; I was notified by counsel that the Board would not

18      do so.

19   36. I sent an e-mail to the principal, Larry Oshodi Monday morning at 11:19 advising
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        him that if I did not hear back from him or the District within two hours regarding
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        some alternative means of resolving this matter I would be appearing in Court
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        this afternoon to request an Order to Show Cause and a Stay of the Suspensions
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        related to this matter. I have not received any response back from Principal
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        Oshodi. I further notified the District of the fact that I would be appearing in Dept.
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        60 at 3:30 on Monday afternoon. I received an email back identifying counsel. I
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        appeared at 3:10 and was advised by the Court that I had until 4:30 to notify
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 3      counsel of a hearing to occur at 2:30 Tuesday, June 5, 2012. At 3:27 p.m. I

 4      spoke to counsel for the district for approximately 18 minutes advising her of the

 5      date, time and place of hearing and discussing further opportunities to try to

 6      resolve this matter without further litigation.
 7   37. I received back an objection to the timeliness of the notice re: exparte hearing.
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     38. All means of a timely amicable resolution to avoid the ultimate harm have been
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        exhausted and have been rejected;
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     39. I spoke to District Counsel at approximately 9:00 a.m. regarding this matter and
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        was advised that the District was willing to implement a modification to the
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        suspensions as follows:
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            a. The 5 day off campus suspension would be converted to a 2 day off
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               campus 3 day on campus suspension;

16          b. The students could come on campus on Wed. 6/6 and Thu. 6/7 to

17             complete their finals that are currently scheduled for 6/6 and 6/7; the finals

18             would be given at a neutral location such as the library;

19          c. The students would still have to rely on the discretion of the teachers
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               regarding whether to allow the students to make up finals missed on 6/4
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               and 6/5; (teachers have demonstrated that this will not occur);
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     40. The only means to avoid the harm is to seek a remedy from the Court. The only
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        mechanism available for challenging the suspension is through appeal with the
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        School Board. The appeal process does not afford the students with a timely
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        remedy as all harm with the exception of the permanent mark on the transcript
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        will not be preventable by pursuing an appeal. Under the current circumstances
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 3      the students will still receive “0” grades on their finals for Monday 6/4 and

 4      Tuesday 6/5; This will impact students in various ways.

 5         a. Students will have their grades reduced;

 6         b. Students will not qualify for graduation;
 7         c. Students scholarships will be in jeopardy; (due to contingency of
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               maintaining GPA)
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           d. Students acceptance in to 4 year universities and colleges will be
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               jeopardized due to admission contingent on maintaining GPA;
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           e. Students transcripts will be permanently marked with an unwarranted
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               suspension;
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           f. Students will not be permitted to receive a diploma on graduation day at
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               the commencement ceremony;

16         g. Students will be required to retake courses in the future;

17   41. Seeking this remedy with ordinary notice requirements would defeat the entire

18      purpose of seeking the remedy and therefore should not be required.

19   42. I spoke to counsel for the District this morning and informed them that the
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        remedy being proposed was still not a remedy and therefore the hearing would
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        be going forward. I further advised counsel that I would be seeking a writ of
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        mandate; and issuance of an osc for a hearing on why the suspensions should
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        not be set aside; I further advised counsel that I would be seeking a stay of the
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        suspensions with an order that the students be permitted back on campus
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        forthwith and that it be required the School/District administer all current and
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        make-up final exams to the students;
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 4   I declare under the penalty of perjury, under the laws of the State of California that
     the foregoing is true and correct.
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     Dated: June 5, 2012
 6                                          _______________________________
                                            Peter Johnson
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