Search & Suspend

On the morning of Feb. 22, 2010, Carlos Espinosa, a junior at Arcata High, was just getting ready to start his second period class when his teacher asked to have a word with him. The sweatshirt he was wearing, she asked — did he really think that was appropriate?

The shirt was a stoner’s spoof of a Nike ad. It transmogrified the company’s “swoosh” logo into a pipe, and mashed up Nike’s slogan with marijuana numerology. “4/21: Just Did It,” it read. A friend had given Carlos the shirt for his birthday. He thought it was funny. But when the teacher raised an eyebrow over it that morning, Carlos took it off with no fuss. He pulled off the shirt, went out to the parking lot, stashed it in his car and went back to class.

He wasn’t the type to make a fuss; he had no disciplinary record at the school. After second period was over, though, Carlos was summoned to the office of Kevin Kleckner, Arcata High’s Dean of Students. Kleckner asked to see the shirt. They went out to the car together. Carlos retrieved the shirt and showed it to him. Kleckner then said that he was going to search the car.

Carlos had his own car, but this was not it. His mother, Gina Espinosa, had just bought a car a few days earlier, and that day she let her son drive it to school. Carlos later said that he did not consent to letting Kleckner search the car. “I told him no, you can’t do that,” he said. But Kleckner proceeded with the search, and eventually found a small pill bottle containing two Valium and a small nugget of marijuana.

Carlos protested his innocence, and tried to explain the circumstances to Kleckner. The dean wasn’t having any of it. “I said, ‘That’s not mine, I don’t know whose it is,'” he recalled in an interview last month. “He just laughed at me and was like, ‘Sure, everybody says that.'” Carlos pulled out his cell phone and tried to call his mother. Kleckner stopped him.

Kleckner called the on-campus police officer, who cited Carlos for possession of the drugs. Then Carlos was told that he was suspended for five days. At that point, he could call his mother — to come pick him up from school and take him home.

Months later, Carlos still had hurt feelings over the experience. “I didn’t know what was happening,” he said. “I got suspended for nothing that I’d done wrong.”

And it would have been more than a simple suspension, but for the fact that Gina Espinosa contacted an attorney soon after getting home with her child. At Arcata High, drug offenses are grounds for expulsion. The customary thing is for a student to be technically expelled from school, then readmitted on a “suspended expulsion” contract that restricts the student’s behavior in school — no leaving campus at lunch time, etc. But to sign such a contract is to admit guilt, and Carlos Espinosa maintained that he was not guilty.

So he and his mother sued the school instead. 

The Espinosas’ attorney, Peter Martin, maintains that “suspended expulsion,” as it is practiced at Arcata High, is a flagrant violation of a student’s civil liberties. The Fifth Amendment to the Constitution states that no person may be “deprived of life, liberty or property, without due process of law.” Children’s constitutional rights are somewhat more restricted than those of adults, but to Martin’s mind suspended expulsion is way outside the realm of even the due process protections given to children.

“If you’re caught with any drugs or alcohol on campus, they say — ‘OK, you’re expelled,'” as he said. “What if you want to challenge it? They say, ‘Well, you can do that, but you have to wait seven or eight weeks for a [school] board hearing. In the meantime, you’re going to stay suspended.’ But if you don’t contest it, you can come back after a week and continue under a suspended expulsion contract.”

Admit guilt and you can come back to school; challenge it and you may not. It didn’t happen this way in Carlos Espinosa’s case. According to Gina Espinosa, the school district presented Carlos with a suspended expulsion contract after the incident but they refused to sign it. Procedure went out the window at that point. Carlos was let back into school anyway — probably, Gina Espinosa speculates, because by that point the school district had received a letter from Peter Martin.

Nevertheless, Geri Wood, Arcata High’s assistant principal, confirmed last week that “suspended expulsion” generally works exactly as Martin described it: If you don’t sign the contract, you’re out of school. 

Wood, who has been Arcata High’s assistant principal for eight years, does not have an easy job. She’s the school’s point person on disciplinary matters, so she must try to keep 800 teenagers in line long enough for them to maybe learn something. As she spoke with a reporter last week, a coach stole her away to report a couple of students that wouldn’t stop wrestling with one another, refusing to listen or to behave. “I’m at the end of my rope!” the coach said. Weapons, drugs, theft and simple disruptive teenage rebelliousness all pass through her office on a regular basis.

Wood could not speak to specific cases — particularly ones in litigation, like the Espinosas’ — but she agreed to speak to the disciplinary policies at Arcata High. She estimated that about 100 students were suspended last year for a variety of infractions. Two students were expelled completely. She didn’t know, offhand, how many of those cases were due to violation of the school’s drug policy, but she did say that drugs — marijuana, in particular — are a more constant problem here than elsewhere.

“You do fight the fact that it’s a cultural part of our community,” she said. “With 215 cards, people may be living in a home where marijuana is grown. And they might come to school reeking of it, and we have to investigate that.”

Wood said that the phrase “zero tolerance” is no longer a part of school policy, but she did say that drug and gun offenses — even first offenses — are generally considered grounds for expulsion at Arcata High. But suspended expulsion, with its contract that theoretically binds the student to good behavior, offers the kids an out. Not only can expelled children return to school, but they have a new tool they can use to turn away peer pressure.

“Somebody says, ‘Oh, let’s go smoke dope at lunch,'” Wood said, giving an example. “They can say, ‘No, I can’t, I’m on suspended expulsion.’ If we can divert them at any point, it’s a success.”

Still, Martin maintains that the Espinosa case proves that the practice is flawed. The only route of appeal is through the Northern Humboldt Union High School District’s board of directors, and parents and children — those without attorneys, anyway — can wait months before receiving a hearing date. If the kid says he’s innocent, he has two choices: Cop to a false charge and go back to school, or be banned from school for months while awaiting a chance to prove his innocence. In Martin’s view, something has to be wrong with that picture.

This isn’t the first time that Arcata High has been taken to court over violation of a student’s constitutional rights. Back in 1966, a physical education teacher reported a 15-year-old pupil to the principal’s office for wearing his hair too long. The student, Gregor Myers, was suspended from class, and the administration sought to have him expelled. Among the justifications given by the school: The year previous, some other students had assaulted Myers, restraining him and forcibly shearing his locks. The fact that his haircut inspired such “vigilantism,” as the school phrased it, was proof that Myers was a disruptive influence in the school.

Myers’ mother sued Arcata High, alleging that the school’s dress code amounted to an infringement of his First Amendment protection to freedom of speech. Humboldt County Superior Court Judge William G. Watson — father of current Judge W. Bruce Watson — agreed with Myers, and ordered Arcata High to reinstate him. The school took the matter to the California Court of Appeals, where it lost again. It attempted to appeal all the way to the California Supreme Court, but that body declined to take the case. When hippie locks and mohawks later swept across the state, the case of Gregor Myers v. Arcata Union High School stood as the reigning law of the land.

Could the same school inspire similar reforms concerning students’ right to due process? It’s not inconceivable, but these are still early days. The Espinosas’ lawsuit, which names Northern Humboldt Union High School District and Kevin Kleckner as defendants, is currently moving through the court system. Late last month, the district’s attorneys — the Eureka firm of Mitchell, Brizzo, Delaney & Vrieze — argued that the suit should be thrown out. In their motion, the defendants argue for a literal, humorless interpretation of the sweatshirt: They write that its message “is, in effect, a statement that plaintiff had just used marijuana.” Kleckner therefore had reasonable suspicion to search the car. As for due process, the school district argues that Espinosa did have a chance to protest his innocence, and that he in fact did so when he told Kleckner that the drugs were not his. Such was all the due process that the school was required to afford him, they argue.

In his opposition to the district’s motion, Martin argues that the shirt is “at best, a humorous reference to the use of cannabis” rather than a flat statement of fact. Since the shirt was the only reason Kleckner gave for wishing to search the car, the search itself was illegitimate. Furthermore, if the due process procedures argued for by the district were sufficient, “… the Dean would act as both prosecutor and judge, creating a situation more likely to come to an unjust result.” Finally, Carlos Espinosa’s suspension for possession of drugs on campus was illegitimate, Martin writes, because legal tradition holds that one must be aware of a thing’s presence to “possess” it.

By press time Tuesday, Judge Dale Reinholtsen had not ruled on the district’s motion to dismiss Espinosa’s suit.

Kevin Kleckner left Arcata High last year. According to a June article in the Tri-City Weekly, he and his family — which includes six adopted children — moved back to Kleckner’s home town in Illinois. The profile highlights the Kleckner family’s long history of service as foster parents, and notes that several of the children the household has taken in were born with medical complications resulting from maternal drug use.

“They have developed a special expertise in the tiniest of drug babies,” Supervisor Jimmy Smith told the Tri-City. “They can offer sage advise on the impacts of drugs on babies. It’s going to be an absolutely substantial loss for this county. It’s going to leave a void here for all of us.”

Gina Espinosa reaffirmed last week that the drugs found in the car were hers, and not her son’s. She’d had the two Valium pills for months, she said — it was left over from a friend’s prescription, and she’d held onto them in case she needed them. And yes, she had stashed a small amount of weed in the pill bottle as well.

Espinosa said that she and her son have since apportioned out their own share of the blame in the whole affair. “We’ve come to an agreement,” Espinosa said. “He’s going to agree that he shouldn’t have worn the sweatshirt, and I’m going to agree that I shouldn’t have had pot in the car.”

But none of that lessens her exasperation when she talks about how Arcata High treated her son. She’s pressing forward with a lawsuit against the school, even though (in her view) having an attorney gave her enough clout to get her kid back into class without him having to admit guilt. It’s the principle of the thing, she said. There were other ways to handle it, and they had less to do with the vagaries of constitutional law and more to do with common sense, and compassion.

“What are all problems based on?” she asked. “Communication. I don’t think Arcata High communicated very well.”

At any point, she said, Kleckner, or someone in the administration building, could have picked up the phone and given her a call. Let them at least try to sort out the situation, to figure out whether or not her son really deserved such harsh treatment.

“We’re innocent until proven guilty,” Espinosa said. “But if you’re a kid, it’s the opposite. It’s ass-backwards.”

This article appears in Search and Suspend.