Tuesday, July 18, 2006

My Email to SMC re: Dismissal of Wrongful Suspension

Finally, Santa Monica College Vice-President of Planning and Development, Robert Sammis, has crawled out of the woodwork, alleging that he has not heard from me, and insisting on moving forward with the suspension appeal hearing. As my email to him (see below) makes clear, SMC is in violation of my due process rights. The time to bring forth such an appeal under the California Education Code has expired a long time ago. This is yet another example of how little respect SMC has for any of our student rights and Constitutional rights. SMC wishes to be a first class community college, yet it repeatedly treats its students as second-class citizens. Fortunately, I am one student who will take a firm stand against injustice and fight for the rights of all of us to due process and free speech.

Notice that despite the fact that SMC's propaganda stated that President Chui L. Tsang is a champion of First Amendment rights for students; he has remained silent thus far. In numerous emails between various parties at SMC, he has actually supported the blatant violation of our First Amendment rights. Perhaps President Tsang should be given a new title, as champion of administrators' special rights at SMC. In any event, we'll see what position President Tsang takes, and what apology may be forthcoming, when a federal court inevitably overturns the wrongful suspension.

-- Des Manttari,
Phoenix Genesis

(c) 2006: Phoenix Genesis/MBS LP

------------------------ YET ANOTHER EMAIL TO ROBERT SAMMIS ----------------------


July 18, 2006


Dear Mr. Sammis,

In your recent email to me, you wrote the following: "I have not heard back from you concerning a date for your suspension hearing." This statement is in fact false, as I had emailed you concerning a date on June 13, 2006 and again on June 16, 2006. I had additionally emailed Santa Monica College president Chui L. Tsang on June 23, 2006 and sent him a certified letter on or about June 30, 2006. Despite all this correspondence, this is the first time that you have responded.

Accordingly, pursuant to California Education Code 66017, "a reasonable opportunity shall be afforded the suspended student for an appeals committee hearing within ten (10) school days." This is even mirrored in SMC Administrative Regulation 4410 Suspension, E (4). I was even willing to extend that time, by mutual agreement, to the first week of July. However, you never responded, nor did President Tsang. Accordingly, that time is elapsed. My appeal was timely filed on June 6, 2006 and it is now 41 days later that you have bothered to contact me. You are even ten days past the time of the reasonable extension I was willing to afford you. Accordingly, you are in violation of my rights and by your unwillingness to respond within the mandated time frame, you have waived your rights to the appeal hearing. Accordingly, the suspension should be null and void and immediately dismissed.

This is not the only California Education Code that SMC has clearly violated. Not only have I repeatedly asked in writing for inspection of my disciplinary records, but I have authorized such in writing to my representative, Stephen E. Drury, Sr. To date, no inspection has been forthcoming. I remind you that you have been in violation of my rights since August 2005, almost an entire year. California Education Code, Section 76232 (a) states:

If a written report is placed in the student's disciplinary file, the student shall have the right to inspect and appeal the information as specified in Education Code Section 76232.

California Education Code, Section 76242 states:

A community college district may permit access to student records to any person for whom the student has executed written consent specifying the records to be released and identifying the party or class of parties to whom the records may be released.

In my June 13, 2006 email to you (republished on my SAVE SMC blog), I asked for additional documentation that was referenced in my disciplinary file. SMC has not provided this information to me. I have also repeatedly asked in writing from you and Ms. Penchansky the names and titles of the appeal hearing committee. Despite the fact that I am entitled to an impartial committee, you both have failed to provide this information to me.

SMC's violation of my due process rights has not stopped there. Pursuant to the California Penal Code governing miscellaneous crimes at schools, the immediate interim suspension must be sent by registered or certified mail, which never occurred. Furthermore, the withdrawal of the consent to enter the SMC campus had to be sent as a written report to President Tsang. This never occurred as you took it upon yourself, as is set forth in the face of your email to Ms. Penchansky, to suggest the interim immediate suspension. No facts or report was provided. California Penal Code 626.4 (b)(1)(2) makes clear:

If the chief administrative officer or, in the chief administrative officer's absence, the person designated by him or her, does not confirm the action of the officer or employee within 24 hours after the time that consent was withdrawn, the action of the officer or employee shall be deemed void and of no force or effect.

According to California Penal Code 626.4 (c), consent shall not be withdrawn for longer than 14 days. SMC initially withdrew my consent on or about May 23, 2006. It is now July 2006, over a month later, and I have not been allowed to re-enter campus without constant police “escort.” Since I filed and personally served (via Stephen Drury) a timely appeal and request for hearing on June 6, 2006, I was within the two-week period. I clearly objected to the immediate interim suspension as “duly oppressive and burdensome.” (See: SMC Appeal, Third Specific Objection, Objection to Immediate Interim Suspension). I also complied with the requirements of providing an “address to which notice of hearing is to be sent.” As indicated previously, SMC has not responded nor has any hearing date, tentative or otherwise, been forthcoming. As such, SMC is illegally withholding my access to its campus.

Furthermore, in these records provided to me by you, SMC indicated that the suspension was not to begin until on or about May 30, 2006, yet this fact was withheld from me, and I was informed that my suspension began immediately on May 23, 2006. As such, I was forced to file a notice of intent to appeal the suspension by May 25, 2006. Again, my rights were clearly violated.

Moreover, SMC violated my due process rights pursuant to SMC AR 4410 Section 2(F)(1), Hearing and Appeal Process, Conference. Although I was willing to meet with Ms. Penchansky, and provided her alternative dates to fit her calendar, she immediately emailed you within an hour's time to inform you and President Tsang that she wished to move forward with the suspension. Although she had months upon months to meet with me, with her legal counsel, she failed to do so. Yet, she would not afford me a chance to meet with her with my legal counsel. Ms. Penchansky was under a duty to meet with me, to listen to my side of the story, as well as to provide me with formal written charges and facts and evidence to support these charges. To date, she has failed to conduct any investigation whatsoever or to file any written report.

Even the face of the suspension letter does not provide substantiated facts. A reasonable person could not decipher the summary allegations and the equally summary of student conduct code violations to derive at any wrongdoing. Accordingly, the entire suspension letter is unconstitutionally overbroad and vague and, as such, a violation of my rights given the excessive length of the suspension.

Moreover, two of the summary allegations upon which SMC has wrongfully suspended me have violated my rights by exposing me to "double jeopardy." On or about June 6, 2006, Ms. Penchansky exonerated me of two of the charges, writing the following: “Nothing will appear in your academic records regarding this incident.” Yet, almost a year later, SMC suspends me on these same charges. Again, if SMC continues with its wrongful suspension, it is in violation of my constitutional rights.

Not only have many of my due process rights been violated, but SMC brings its wrongful suspension based entirely on protected free speech, free press, and the rights to redress grievances, all protected under the First Amendment and guaranteed in writing by SMC's own internal policies and its Student Bill of Rights. However, not only has SMC violated the law and its own policies, but SMC has done so both negligently and willfully, going so far as to manufacture witnesses and evidence against me. Based on the documents provided by you on or about June 12, 2006, it is evident that Ms. Penchansky did not even hint at any fundamental fairness or impartiality, but instead went out of her way to aid those who brought wrongful charges against me. If SMC wishes to proceed, it is opening itself up to costly litigation, which it would not win.

Accordingly, SMC's wrongful disciplinary enrollment hold is in violation of my rights. SMC’s AR 4410 Section 2(D), Temporary Disciplinary Holds makes clear that a disciplinary hold is placed so that the disciplinarian, Ms. Penchansky, can "conduct a thorough investigation of an alleged violation of the Student Conduct Code." Since Ms. Penchansky never conducted any investigation, let alone a thorough one, the hold should be removed. Additionally, I filed a timely appeal to which SMC did not respond within the allocated time frame, further violating my rights by maintaining such a hold.

This list of due process rights and constitutional rights is far from exhaustive. However, there is enough here for SMC to see that is in clear violation. Not only would SMC lose on the facts of the suspension case, it would lose on the procedural end. As such, the suspension should be dismissed immediately, I should be allowed to enter campus without police escort, the enrollment hold should be removed so that I can register for fall semester classes, and my disciplinary file (which I have been denied a right to inspect) should be expunged in its entirety. Failure to do so will lead to court intervention.

I expect an immediate response from you and SMC. Furthermore, I request that this email be printed out and included in my records at SMC.

Very Truly Yours,
Des Manttari /s/

cc: SMC President Chui L. Tsang
Nancy Greenstein, Chair, SMC Board of Trustees
Susan Aminoff, Vice-Chair, SMC Board of Trustees

Office for Civil Rights, U.S. Department of Education

-------------------------- ROBERT SAMMIS' EMAIL TO ME ---------------------------

Date: Mon, 17 Jul 2006 11:36:52 -0700

Dear Des:

I have not heard back from you concerning a date for your suspension hearing. Please let me know the name of your attorney and his/her phone number so I may contact your attorney directly to arrange for an agreeable date for the hearing.

Thank you,

Robert Sammis
Vice President, Planning&Development
Santa Monica Community College District


Feel free to link or print this; just include the SAVE SMC URL: http://savesmc.blogspot.com/

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