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Behrens Lawyer: Ed Will Appeal New Ruling

August 26, 2019

 

The suits down at Santa Barbara school district HQ were doing touchdown dances late Friday, in celebration of their latest legal victory over Ed Behrens, the embattled ex-principal of San Marcos High School.

 

"We are thankful that the court has ruled in our favor on all fronts in the Behrens case," Superintendent Cary Matsuoka said in a statement relayed through spokeshuman Camie (Cohee) Barnwell.

 

"We look forward to a bright future at San Marcos High School under the leadership of Dr. Kip Glazer,” Cary added, twisting the knife into Behrens by referencing his permanent replacement.

 

Not so fast,  the blue-chip attorneys who have represented Behrens in his efforts to regain his job, and clear his name, said on Monday.

 

“We have strong arguments on appeal, so will appeal the Superior Court’s orders and continue pushing until justice is served for Ed and the San Marcos High School community,:” David Cousineau, representing the high-powered firm led by bulldog barrister Barry Cappello, told Newsmakers.

 

“The legal process has confirmed what we always thought,” Cousineau added, “Ed Behrens, a devoted and respected principal, was demoted after a concerted campaign to undermine his reputation, and then was publicly denigrated based on false information."

 

Hic manebimus optime.

 

 

Our story to date. Behrens, of course, was famously ousted by Matsuoka and four-fifths of the school board in 2018, in the wake of the “chat room” scandal at San Marcos, in which some big brain freshmen digitally manufactured an online threat to a group of women students.

 

The move generated months of community outrage, a spirited school board race featuring loud criticism of Matsuoka’s leadership and the litigation filed by Behrens.

 

Loyal Newsmakers know that Superior Court Judge Pauline Maxwell delivered a devastating blow to his legal challenge against SBUSD back in May. As we reported (in a piece that provides background links for anyone who wishes to go down the rabbit hole on the matter): 

 

"In the end, the lawsuit by Ed Behrens to regain his job as principal of San Marcos High School was doomed by one simple but stubborn legal fact: 

 

Behrens was an “at will” employee of the Santa Barbara Unified School District – so Superintendent Cary Matsuoka and the school board ultimately didn’t need any special reason to can him.

 

That is the gist of a 12-page, redacted ruling that SB Superior Court Judge Pauline Maxwell issued on May 9, apparently capping a 16-month cause célèbre saga of controversy over his ouster."

 

Covering our keister, the kicker of the piece quoted Behrens attorney and Cappello partner Leila Noel: "Your article suggests the case is over, but it is not."

 

 

Deep in the weeds. Among other legal matters, Noel's comment referenced a final, endgame cause of action in the Behrens action about which the judge did not rule last May. 

 

It’s a tortuous legal matter that boils down to this: Behrens argues that the district’s treatment of him -- busting him down to social studies teacher and effectively making him the fall guy for the “chat room” affair at San Marcos -- violated his constitutional civil right to due process.

 

Here’s how Judge Maxwell summarized his pleading:

 

"In his second cause of action, plaintiff alleges: 

 

● Plaintiff has a constitutionally protected right (“liberty interest”) to follow his chosen profession of high school administrator. 

 

● District, acting under the color of California law, deprived plaintiff of his liberty interest without due process of law by demoting him from principal of SMHS to classroom teacher without affording sufficient notice or a name-clearing hearing regarding the allegations made against him. 

 

● Plaintiff has a liberty interest in his reputation cultivated over a twenty-year career at SMHS. 

 

● District’s meritless criticisms and retaliatory demotion of plaintiff caused substantial damage to his reputation and negatively affected his prospects for future employment in his chosen profession in violation of his of his due process rights as he was not afforded proper notice or a meaningful opportunity to clear his name."

 

On the other hand she had a glove. The district, lawyered up via legal eagles Craig Price and Joe Shoulder, responded by claiming a fatal flaw in the argument:

 

Behrens's pleading that his civil rights were violated rests on a portion of the (all rise) Code of Laws of the United States of America known as 42 U.S.C. Section 128, which holds in part:

 

"Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable..."

 

The Price-Shoulder dynamic duo argued, successfully, that the school district is exempt from such a legal challenge because it is not a "person" under the meaning of Section 128.

 

Rather SBUSD enjoys "sovereign immunity" under the 11th Amendment of the U.S. Constitution, which protects federal and state government from many legal challenges, because school districts are "instrumentalities" of the state of California, they said.

 

 Judge Maxwell agreed with their argument, noting  the “pervasive control the state exercises over the affairs of school districts,” especially via its financing of public education. 

 

So she tossed Behrens's civil rights claim as a fundamental matter of law, not on the experiential facts Behrens alleged in his petition.

 

Now comes Cousineau, declaring that Behrens plans to appeal the judge's finding to the 2nd District Court of Appeal in Ventura.

 

Bottom line. Newsmakers has learned, through an exhaustive, in-depth five minute Google search, that it was the San Antonio Sports Hall of Fame good ole boy sportswriter Dan Cook who coined the timeless expression: “The opera ain’t over ‘til the fat lady sings.”

 

You could look it up

 

Images: Ed Behrens; Cary Matsuoka; Deep in the Weeds guy; Judge Pauline Maxwell.

 

 

 

 

 

 

 

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