Tuesday, July 25, 2006

SMC's Failure to Adhere to its Due Process Guarantees

Robert Sammis is getting progressively more nasty and evasive in his emails to me. Meanwhile, Santa Monica College President Chui L. Tsang has simply lapsed into silence, in sharp contrast to his designation as champion of student First Amendment rights. Despite copying my numerous written emails to the SMC Board of Trustees, they too have been curiously silent. If the District was so convinced of its charges against me, it would be eager to proceed forward at a swift pace. However, it seems that the District's smear campaign simply isn't holding up very well under public scrutiny, as was to be expected. If the District cannot defend itself in its own kangaroo court, of which it unilaterally controls, it will fail miserably in any defense in a real court of law as to why its administrators and Board of Trustees are continuing to deprive me of my education. Accordingly, I give Santa Monica College a red light rating for its lack of due process rights and for its vague, ambiguous, and Constitutionally overbroad student conduct codes.

-- Des Manttari,
Phoenix Genesis

(c) 2006: Phoenix Genesis/MBS LP

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


July 25, 2006

Dear Mr. Sammis,

In your last email you wrote in part the following to me: "No matter how often you write your self serving views of the facts, you will not convince the District to dismiss your suspension." Is this comment by you, acting as an official representative of Santa Monica Community College District, the biased attitude you will take as an allegedly impartial representative in any allegedly impartial appeal hearing? If this is so, then I will not be afforded any opportunity to effectively present my case before the District as you have made a unilateral decision that any arguments I might raise or defense I might present before the appeal hearing committee are merely "self serving views."

As you should be well aware, I have every right to raise valid questions pertaining to my suspension, such as whether the District has erroneously interpreted or applied the law, whether the District's action is based on a determination of fact, made or implied by the District, that is not supported by evidence that is substantial when viewed in light of the record as a whole, and whether the District's action is otherwise unreasonable, arbitrary or capricious. Furthermore, I have every right to hold SMC accountable to its administrative regulations governing prompt disclosure of my disciplinary records, inspection of my disciplinary records, and timely hearing on my suspension (especially given the fact that you yourself were the one who authorized the immediate interim suspension without any prior hearing on its validity and continue to refuse to provide me with a prompt hearing as I have repeatedly requested in writing).

As a general rule, administrative regulations (such as fall into the category of SMC's AR 4410 governing student conduct and appeal hearings) have the force and effect of law. In fact, SMC repeatedly relies upon numerous provisions of the California Education Code to justify AR 4410. Accordingly, I was to be afforded a timely appeal hearing within 10 days. I have written you, along with President Tsang and the SMC Board of Trustees, to comply with the law. I have given repeated notice that I expect an appeal hearing no later than Monday, July 31, 2006, and have given you timely written notice of such. To ignore this request, and the law, is grounds to invalidate the suspension as null and void. Add to this your ever-growing lack of impartiality, and there is further justification to set aside the suspension.

SMC is not only legally and morally bound to uphold the Constitutional guarantees of due process, it is contractually obligated by virtue of its advertisement of such. According to SMC's statements in its College Policies governing College Conduct:

SMC has an established "due process" through which its disciplinary and removal powers are exercised. As a further safeguard of student rights, an appeal procedure exists for these policies, as well as for appeals of grades, matriculation, and disqualification. The Student Conduct Appeals Committee will hear student appeals.

SMC's Master Plan for Education, found online at SMC's website, states:

The Office of Student Judicial Affairs is perceived as a place where students go to have problems solved, to sit down and come to agreements, to gather information, and to feel that they have experienced "due process." In addition to improving campus morale, this approach has the potential of assisting the College in avoiding costly litigation.

Even Judith Penchansky wrote in your May 9, 2006 email to me, which was copied to you: "no decision has been made regarding your suspension and if that occurs, you will have the right to full due process." Despite these written promises, I was not afforded due process or timely notice. Instead, while I was issued a suspension email, dated May 23, 2006, immediately denying me access to my ET 14 web design course at AET, Ms. Penchansky was emailing numerous individuals at SMC, including my ET 14 professor, Zeny Baduel and yourself, indicating that I "should not be on campus (any of the campuses) beginning Tuesday, May 30, 2006." Of course I never received this contradictory notice from her until you provided it to me after the fact, on or about June 12, 2006. Therefore, I was deprived of my rights to enter campus since on or about May 23, 2006. That alone is justification to dismiss the suspension.

Furthermore, SMC advertises under its goals, a community of mutual respect as follows:

The College will be exemplary as a diverse community of mutual respect- a community characterized by respect for the individual, free exchange of ideas, broad collaboration, and participation in college governance.

Somehow, the District has failed repeatedly to live up to its advertised guarantees toward its students of due process and mutual respect. When the District repeatedly closes its eyes to providing me an appeal hearing either prior to its suspension or within a reasonable time thereafter, it is denying me due process of law contrary to the safeguards established by the Fourteenth Amendment. Accordingly, I am entitled to have the Court enjoin SMC's administrators to remove all reference to my suspension from my student records, including disciplinary records, as to be reinstated as a student with all my full privileges and rights restored.

To date, I was never given a hearing to determine the operative facts (if any) underlying the suspension, including the immediate interim suspension, nor was I provided a formal conference, subsequent to the effective date of the suspension, to discuss it with Judith Penchansky, acting in her official capacity as Campus Disciplinarian. Moreover, the District did not even provide me with the bulk of the documentation it had in its possession, as allegedly contained in my disciplinary files, until after I filed my timely appeal, thus depriving me the opportunity to adequately respond to many false allegations against me. In fact, some of these documents that contained these allegations were withheld from me for almost ten entire months.

To add further abuse of due process, on or about April 21, 2006, you indicated to me that you had provided me with the complete documentation as contained in my disciplinary file, knowing full well that you were withholding, or allowing Ms. Penchansky to withhold, many documents against me that I could have easily refuted if they were timely disclosed. Either you willfully concealed these documents from me on this date, or alternatively, these documents were manufactured at a late date and simply backdated. Neither explanation points favorably toward the District's guarantees of due process, especially given the severity and length of my suspension from the college. Had I been afforded my rights to physically inspect my disciplinary records, as I had repeatedly requested prior to our April 21, 2006 meeting, this matter would have been settled. I question now what other documentation is either included in my disciplinary files that is still being withheld or what relevant documents have been omitted without my permission or authorization, such as any favorable witness statements on my behalf (which the District has repeatedly denied me despite my requests).

Your overarching bias in this case, along with Ms. Penchansky's, has not stopped there. On or about May 9, 2006, prior to my suspension, you (along with Ms. Penchansky) met with two of my accusers, Thomas J. Baker and his business partner Mario Alarcon, and went over the temporary restraining order I obtained against Mr. Baker. According to Ms. Penchansky's email to SMC Professor Howard A. Stahl:

Robert went over the Order and advised him on how to respond. Thomas' court date is May 25, 2006 and I have asked the AS program leaders (Benny Blaydes and Deyna Hearn) to provide Thomas with letters of support.

Despite the fact that I had filed legitimate grievances against Mr. Baker and the SMC Game Club to Ms. Hearn on or about May 8, 2006, the District took it upon itself to wholeheartedly support Mr. Baker. The District even went so far as to make sure that I was suspended right before the Court date, to further prejudice any chance I had of a successful outcome. Is it any wonder the suspension was so sloppily thrown together with its lack of clear and convincing charges against me?

Despite the fact that the District continued to have written dialogue with Mr. Baker (including Professor Jim Keeshen and Judith Penchansky), Ms. Penchansky not only indicated in writing that she refused to have a written dialogue with me, but she prohibited me from having any avenue of communication with Professor Keeshen. However, the District allowed Professor Keeshen to continue to communicate unilaterally with me after Ms. Penchansky' written chilling of my First Amendment rights. While I was not afforded any conferences with anyone to discuss either my legitimate grievances or the false allegations against me, those adverse to me were afforded many such conferences with Ms. Penchansky, Ms. Hearn, and you.

Clearly, the District cannot support any claims of fundamental fairness. To offer legal advice to Mr. Baker in legal matters outside the bounds of the District's jurisdiction and control was a gross violation of my rights. If the District was willing to provide legal expertise and preparation of court filings to one of its students free of charge, then I should also have been afforded free legal counsel as well in this matter. The fact that Mr. Baker's answer under penalty of perjury, which you helped him to draft, was inconsistent with his statements to the SMCPD upon which you justified your suspension of me, is grounds enough for dismissal of my suspension. The District will be hard pressed to hide behind lack of knowledge as to Mr. Baker's statements surrounding the March 24, 2006 incident given its active involvement in the drafting of his responses both inside and outside the parameters of the college.

The District is constrained to recognize a student's legitimate entitlement to a public education as a property interest which is protected by the Due Process Clause of the Fourteenth Amendment and which may not be taken away for misconduct without adherence to the minimum procedures required by that Clause. The Due Process Clause also forbids arbitrary deprivations of liberty. "Where a person's good name, reputation, honor, or integrity is at stake because of what the government is doing to him," the minimal requirements of the Clause must be satisfied.

The District has suspended me for two years, including the immediate interim suspension based on less than convincing or substantiated charges of misconduct. As has been made clear, the District supported these charges as is evident in your involvement with Mr. Baker's restraining order answer, well in advance of any formal determination to suspend me, thus interfering with my good standing among my fellow students and teachers. It is apparent that the claimed right of the District to determine unilaterally and without process whether the misconduct has occurred immediately collides with the requirements of the Constitution. A two-year suspension, without a timely appeal hearing, is a severe detriment and grievous loss from which I continue to suffer for the past two months, since the date I filed my notice to appeal on May 25, 2006.

Neither the property interest in educational benefits denied nor the liberty interest in reputation, which is also implicated, is so insubstantial that suspensions may constitutionally be imposed by any procedure the school chooses, no matter how arbitrary. As the Supreme Court has made clear:

"[Fairness] can rarely be obtained by secret, one-sided determination of facts decisive of rights. . . ." "Secrecy is not congenial to truth-seeking and self-righteousness gives too slender an assurance of rightness. No better instrument has been devised for arriving at truth than to give a person in jeopardy of serious loss notice of the case against him and opportunity to meet it."

In fact, SMC's own Bill of Rights emphasizes a "search for truth." If the District is unwilling to move forward with its search for truth with a timely suspension hearing, as I have repeated indicated in writing, then it should now dismiss any and all of its vague, ambiguous, and overbroad summary charges and alleged student conduct code violations against me.

Again, by copy of this email to you, I am requesting that the District confirm its intent to provide me with an impartial appeal hearing by July 31, 2006, long overdue by law and its own written policies, or to dismiss the suspension with prejudice. Additionally, by copy of this email to you, please confirm whether the District is to provide me prompt inspection of my disciplinary files, the disclosure of the names and titles of the appeal hearing committee, and the release of copies of any and all missing documents in my disciplinary records that I have previously mentioned in detail in previous correspondence with you. Furthermore, I request that a copy of this email be printed out and included in my disciplinary records at SMC.

Since time is of the essence, I expect a response by the close of business today. To reiterate, a public educational institution such as Santa Monica College is morally and legally bound to adhere to the Constitution, the California Education Code, and its own administrative regulations, board policies, and its Student Bill of Rights.

Very Truly Yours,

Des Manttari /s/

Cc: Chui L. Tsang, President and Superintendent
SMC Board of Trustees: Nancy Greenstein, Susan Aminoff, Carole Currey, and Rob Rader
Robert Adams, Vice President of Student Affairs
U.S. Department of Education, Office for Civil Rights

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

To: "Phoenix Genesis"
Subject: RE: Failure to Comply with SMC Administrative Regulations re Suspension
Date: Mon, 24 Jul 2006 18:24:24 -0700


No matter how often you write your self serving view of the facts, you will not convince the District to dismiss your suspension. Again, if you are represented by an attorney, as you have stated you are, please send me his/her name so I may schedule your suspension hearing.

Robert Sammis

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