Civil Rights Lawyer Calls Lawsuit Against AUSD Frivolous (Take the Poll)

A prominent San Francisco civil rights attorney said a recent lawsuit filed against the is frivolous.

Last week, Albany Patch reported that Bowen Bethards, a former Albany High student, and his mother are .

Albany Patch contacted Michael Sorgen, who said he has practiced education law for more than 45 years, to hear what he had to say about the legal action.

"I think this is a ridiculous lawsuit," Sorgen said.

Sorgen served as the general counsel to the Oakland Unified School District during the 1970s and he said he is now one of the few attorneys who litigates for student rights.

Though he often represents plaintiffs, Sorgen said this was a case he would never take.

The main problem, according to Sorgen, is that state law only allows students to challenge a grade under very limited circumstances.

California Education Code Section 49066 states that "the determination of the pupil's grade by the teacher, in the absence of clerical or mechanical mistake, fraud, bad faith, or incompetency, shall be final."

In the formal complaint, Bethards says chemistry teacher Peggy Carlock, , intentionally gave him a lower grade to ruin his future.

In the complaint, Bethards says “Carlock was aware, at all relevant times, that a ‘C+’ in chemistry would effectively destroy plaintiff Bowen Bethards’ chances of being accepted to either of his two colleges of choice, as well as his chances of getting a scholarship to attend to the programs of his choice.”

But Sorgen said it would be extremely difficult to prove that Carlock gave Bethards the C+ in bad faith.

Sorgen added that it was odd Bethards's attorney, Daniel Horowitz, filed the lawsuit in federal court, when the dispute seemed to be a matter of state law.

According to the complaint, the case was filed in federal court because the matter related to a deprivation of civil rights.

"I don’t know of any precedent that says giving a student a grade that he disputes is a violation of civil rights," Sorgen said.

Sorgen said he is unaware of any case where a student sued over a grade, and he doubts Bethards' grade will be changed.

"As far as I know, the school district has no authority to change the grade, even if they wanted to," he said.

According to the series of events outlined in the complaint, the district already changed Bethards' grade from a C+ to a B, as evidenced by emails between and Bethards' mother, Laureen.

California Education Code 49066 states that the superintendent and school board can only change a student's grade if the teacher is given the chance to state why the grade was given, and is included in all discussions related to the grade.

In an email sent Jan. 31, 2012, Stephenson said Carlock would change the grade to a B if Bethards’ mother wrote a note to excuse his “absences for the makeup days during final exam week.”

Bethards’ mother responded by saying she would excuse the absences, but said her son had earned an A+ in the class, not a B.

In addition to claiming at least $10,000 in damages, Bethards also wants the court to order the district to change the grade to an A+, according to the complaint.

The covering the lawsuit resulted in more than 100 comments, with readers sharing a mix of positive and negative stories about Carlock.

The story was also featured on several news outlets, including the Huffington Post, ABC News, and Overlawyered (a law blog about excess litigation), where many readers criticized Bethards for taking the district to court over his grade.

On Albany Patch, one reader wrote, "Suing the school district that is already struggling financially is an injustice in itself."

What do you think of lawsuits over grades? Take the poll at the bottom of this page, and share your thoughts in the comment section below.

If there's something in this article you think , or if something else is amiss, call editor Emilie Raguso at 510-459-8325 or email her at albany@patch.com.