Judge James C. Chalfant, Case Number: 23STCP02316, Date: 2024-04-16 Tentative Ruling

Petitioner Kehinde Elemuren (“Elemuren”) seeks administrative mandamus directing Respondent Charles R. Drew University of Medicine and Science (“CDU”) to set aside his dismissal and reinstate him as a student.

The court has read and considered the moving papers, opposition, and reply, and renders the following tentative decision.

Petitioner Elemuren commenced this proceeding on July 5, 2023, alleging causes of action for administrative mandamus and breach of contract. The verified Petition alleges in pertinent part as follows.

On July 26, 2020, while Elemuren was pursuing his degree for a Psychiatric-Mental Health Nurse Practitioner (“PMHNP”) and in good standing with CDU, a dispute arose regarding his NUR 645 examination (sometimes “exam”). Elemuren was given a failing grade of 22.5/50, despite his contention that inclement weather and loss of electricity prevented him from remotely accessing the exam during the designated window. The exam was set for a two-hour window: 9:00 a.m. to 11 a.m. Elemuren logged in to take the exam from where he was in Texas and was only able to log into the exam at 10:52 a.m., leaving only eight minutes until the 11:00 a.m. cutoff.

Elemuren attempted to resolve the dispute with the course professor, Dr. Eunice Bisong Nkongho (“Bisong”). Bisong would not consider modifying Elemuren’s grade. On August 18, 2020, Elemuren filed a student grievance according to protocol.

On August 25, 2020, the CDU Greivance Committee issued its decision requiring Elemuren to retake the exam in light of his experienced “technical difficulties.” The decision did not set forth a specific date or deadline for Elemuren to retake the exam. Elemuren accepted the decision.

Elemuren and CDU agreed that he would take the rescheduled exam on September 3, 2020. Elemuren was informed CDU was unable to administer the exam on that date due to technical difficulties.

On September 4, 2020, Elemuren logged onto the Blackboard platform to take the exam but was informed by Bisong that he would not be provided with the same exam resources that all the other students received: a study guide while taking the exam and an opportunity for 10% extra credit. Elemuren informed Bisong that he would need to consult with the provost prior to retaking the exam. Bisong responded that she would not be administering the exam and logged off Blackboard.

The same day, Bisong and Provost Dr. Steve O. Michael (“Michael”) met and then informed Elemuren that he would be able to retake the exam, but they were deferring to the Dean to determine whether Elemuren would be entitled to the study guide and extra credit opportunity. Bisong informed Elemuren that he had until the end of that day, September 4, 2020, to take the exam, despite the Dean’s pending decision. Elemuren was not willing to take the exam until the Dean’s determination and was consequently given a zero.

After a meeting between Elemuren and Dean Diane Breckenridge (“Breckenridge”), CDU officials followed up with Elemuren on September 21, 2020 to propose that he retake the entire NUR 645 course. After Elemuren refused, he received an email the following day from CDU informing him that he had been withdrawn from school.

On January 29, 2021, Elemuren received a Notice of Dismissal from CDU, alleging that he committed violations of student conduct and policies specific to academic dishonesty.

Pursuant to administrative appeal requirements, Elemuren submitted a one-page written grievance. On February 9, 2021, Elemuren met with the Grievance Committee. On February 18, 2021, the Interim Dean of the Mervyn M. Dymally School of Nursing at CDU informed Elemuren that the Grievance Committee had unanimously concurred with the decision to expel Elemuren on grounds of academic integrity leading to a failed grade and two subsequent refusals to take the exam.

Petitioner Elemuren seeks (1) a writ of administrative mandamus setting the Notice of Dismissal and reinstating him into good standing, (2) an injunction compelling CDU to reinstate Elemuren’s original exam score of 43.5/50 or in the alternative administer the NUR 645 exam to the Elemuren, (3) damages, and (4) costs and reasonable attorney’s fees.

On October 3, 2023, CDU agreed that the Petition lies in administrative mandamus.

CCP section 1094.5 is the administrative mandamus provision which structures the procedure for judicial review of adjudicatory decisions rendered by administrative agencies. Topanga Ass’n for a Scenic Community v. County of Los Angeles, (“Topanga”) (1974) 11 Cal.3d 506, 514-15.

Administrative mandamus pursuant to CCP section 1094.5 applies to the disciplinary decisions of private universities to which the common law doctrine of fair procedure applies. Boermeester v. Carry, (“Boermeester”) (2023) 15 Cal.5^th 72, 86. Administrative mandamus is a proper remedy for a decision where a hearing is required by law and evidence is required to be taken, even if a hearing was never held. Pomona College v. Superior Court, (“Pomona College”) (1996) 45 Cal.App.4^th 1716, 1729. “[CCP] Section 1094.5 expressly provides that it is the requirement of a hearing and taking of evidence—not whether a hearing is actually held and evidence actually taken—that triggers the availability of mandamus review.” Id. (italics in original).

CCP section 1094.5 does not on its face specify which cases are subject to independent review, leaving that issue to the courts. Fukuda v. City of Angels, (1999) 20 Cal.4th 805, 811. In cases reviewing decisions which affect a vested, fundamental right the trial court exercises independent judgment on the evidence. Bixby v. Pierno, (1971) 4 Cal.3d 130, 143. See CCP §1094.5(c). There is no fundamental vested right to a private college education. Gurfinkel v. Los Angeles Community College Dist., (1981) 121 Cal.App.3d 1, 6. A private university’s factual findings in a student discipline case are evaluated under the substantial evidence standard. Doe v. University of Southern California, (“USC”) (2016) 246 Cal.App.4^th 221, 239, 248-49.

“Substantial evidence” is relevant evidence that a reasonable mind might accept as adequate to support a conclusion (California Youth Authority v. State Personnel Board, (“California Youth Authority”) (2002) 104 Cal.App.4th 575, 585) or evidence of ponderable legal significance, which is reasonable in nature, credible and of solid value. Mohilef v. Janovici, (1996) 51 Cal.App.4th 267, 305, n.28. The petitioner has the burden of demonstrating that the agency’s findings are not supported by substantial evidence in light of the whole record. Young v. Gannon, (2002) 97 Cal.App.4th 209, 225. The trial court considers all evidence in the administrative record, including evidence that detracts from evidence supporting the agency’s decision. California Youth Authority, supra, 104 Cal.App.4th at 585.

The agency’s decision must be based on the evidence presented at the hearing. Board of Medical Quality Assurance v. Superior Court, (1977) 73 Cal.App.3d 860, 862. The hearing officer is only required to issue findings that give enough explanation so that parties may determine w hether, and upon what basis, to review the decision. Topanga, supra, 11 Cal.3d at 514-15. Implicit in section 1094.5 is a requirement that the agency set forth findings to bridge the analytic gap between the raw evidence and ultimate decision or order. Topanga, 11 Cal.3d at 515.

The question of whether a university has complied with the requirements of fair procedure is an issue of law reviewed by the court de novo. USC, supra, 246 Cal.App.4^th at 239.

An agency is presumed to have regularly performed its official duties (Evid. Code §664), and the petitioner therefore has the burden of proof. Steele v. Los Angeles County Civil Service Commission, (1958) 166 Cal.App.2d 129, 137. “[T]he burden of proof falls upon the party attacking the administrative decision to demonstrate wherein the proceedings were unfair, in excess of jurisdiction or showed prejudicial abuse of discretion.” Afford v. Pierno, (1972) 27 Cal.App.3d 682, 691.

With respect to student discipline, neither the property interest in educational benefits temporarily denied nor the liberty interest in reputation is so insubstantial that discipline may be imposed by any procedure the school choses, no matter how arbitrary. Goss v. Lopez, (“Goss”) (1975) 419 U.S. 565, 576. “The student's interest is to avoid unfair or mistaken exclusion from the educational process, with all of its unfortunate consequences…. Disciplinarians, although proceeding in utmost good faith, frequently act on the reports and advice of others; and the controlling facts and the nature of the conduct under challenge are often disputed. The risk of error is not at all trivial, and it should be guarded against if that may be done without prohibitive cost or interference with the educational process.” Id. at 579-80.

Students facing academic discipline such as suspension or expulsion must at a minimum be given notice and afforded a hearing. Id., at 579. The hearing need not be formal, but the student must be told what he is accused of doing and the basis of the accusation before “being given an opportunity to explain his version of the facts at this discussion.” Goss, supra, 419 U.S. at 582.

“[A] private university provides an important, quasi-public service — a postsecondary education — affecting the public interest”. Boermeester, supra, 15 Cal.5th 72 at 89. Private universities are required to comply with the common law doctrine of fair procedure, the principles of which are similar to those of due process in that they are flexible and context specific. Id. at 87. Fair procedure, however, is a more flexible concept than due process. Ibid. Under either concept, the procedure necessary to provide the student accused of misconduct “notice of the charges against them and a meaningful opportunity to be heard.” Id. at 79.

“Private universities generally know best how to manage their own operations, and requiring a fixed set of procedures they must utilize in every situation when determining student discipline would constitute an improper intrusion into their internal affairs.” Id. at 90. Consequently, courts should not specify rigid procedures that a private university must follow (id. at 80), and private universities must “‘retain the initial and primary responsibility for devising a method’ to ensure adequate notice and a meaningful opportunity to be heard. [Citation].”). Ibid.

Common law requirements for a fair hearing under CCP section 1094.5 do not allow an administrative decisionmaker to rely on evidence not revealed to the accused. USC, supra, 246 Cal.App.4^th at 247. Generally, a fair procedure provides “notice reasonably calculated to apprise interested parties of the pendency of the action… and an opportunity to present their objections.” Id., at 240. The notice required in a student disciplinary action must identify the specific rules that the student is alleged to have violated and the factual basis for the accusation. Id. at 243-44. It is insufficient to provide the accused student with only a list of rules that may have been violated. Ibid.

An accused student is entitled to copies of all the evidence presented to or considered by the decisionmaker, including any investigative report prepared by the university. USC, supra, 246 Cal.App.4th at 247. An administrative tribunal may not rely on its own information or consider as evidence matter that was not introduced at a hearing of which the parties had notice or were present. Id. at 248. This information must be provided by the university prior to the hearing, and the university may not require the accused student to specifically request this information. Id. at 246. See also Doe v. Westmont College, (“Westmont”) (2019) 34 Cal.App.5th 622, 634 (college must give the accused student notice of the allegations against them and a fair hearing before a neutral decisionmaker at which he or she may attempt to rebut the allegations).

Among other things, the fair procedure doctrine requires a private university “to comply with its own procedural rules governing the expulsion of individuals from the organization, and it permits courts to evaluate the basic fairness of those procedural rules when the organization seeks to exclude or expel an individual from its membership.” Boermeester, supra, 15 Cal.5th 72 at 86 (private university not required to provide live hearing where student accused of sexual misconduct confronts witnesses through cross-examination). While California law does not require any specific form of disciplinary hearing, a university is bound by its own policies and procedures. Berman v. Regents of University of California, (2014) 229 Cal.App.4th 1265, 1271-72. The trial court’s determination of whether the university complied with its own hearing requirements requires application of the rules of statutory interpretation and construction. Id. at 1271; Westmont, supra, 34 Cal.App.5th at 635. Additionally, a court should not second guess the academic judgments made by the college faculty. Pomona College, supra, 45 Cal.App.4th at 1726.

The Student Handbook outlines the academic grievance process. AR 161, 163-64. The Student Handbook explains how a student should prepare an academic grievance, that the grievance will be heard by the Student Affairs Committee, and that the student may appeal the decision to the Dean. AR 164. The Student Handbook states: “It is the responsibility of the student to move the process forward through each step.” AR 163.

The University Catalog describes the Academic Integrity and Academic Dishonesty policy. AR 152-53.

The University Catalog states that the Dean of each school is “responsible for ensuring that the college/school maintains appropriate student policies and procedures that are reasonable, well publicized, and administered fairly and consistently, for filing a report of misconduct or an appeal or grievance.” AR 143. The Dean of each CDU School “will ensure that enrolled students receive and acknowledge receipt of this policy on an annual basis, as well as any distinct set of misconduct, appeal, or grievance policies and procedures tailored to its specific student.” AR 143.

The Dean of Student Affairs will ensure that CDU’s student service units maintain a copy of the Student Appeals and Grievances and related policies and procedures regarding the “due process” rights and responsibilities of students for filing an appeal or grievance. AR 143. The Dean exercises final decision-making authority for resolution of reports of misconduct or student appeals or grievances at the level of student service units and their attendant student support programs. AR 143.

However, students may appeal such decisions to the Provost. AR 143. For those occasions when there is not a satisfactory resolution of a report of misconduct or an appeal or grievance at the level of a college/school or student service unit – where a Dean is the final authority – the Provost will maintain a procedure for an ad hoc hearing. AR 143. The Provost must ensure that students have a full and fair opportunity to present evidence at the hearing relevant to the issues raised in their original filing at the lower levels. AR 143. The Provost exercise final decision-making authority for resolution of reports of misconduct or student appeals or grievances at the level of the University. AR 143.

Students can request in writing that the Provost review the appeal not resolved satisfactorily at the college/school level. AR 146. A student request for an ad hoc hearing shall be submitted to the Provost within ten days after the Dean renders a final decision. Id. The Provost shall arrange for an ad hoc hearing within 30 business days and appoint a hearing officer to conduct the ad hoc proceeding. AR 146. The hearing officer shall afford the student a full and fair opportunity to present evidence relevant to the issues raised in the original appeal or grievance at lower levels. AR 146. The hearing officer will submit a written recommendation to the Provost about how to respond and the Provost’s decision is final. AR 146.

In 2014, Elemuren graduated from CDU with a degree from the Family Nurse Practitioner program with a cumulative GPA of 3.59. AR 97, 100. After practicing as a family nurse practitioner for four years, Elemuren applied to CDU’s PMHNP program, was accepted, and began attending the PMHNP program at CDU’s Mervyn M. Dymally School of Nursing in May 2019. AR 97, 606.

On July 26, 2020, Elemuren was scheduled to take the final examination for the NUR 645 PMHNP course. AR 180. The faculty for this course included Director Bisong and Victoria Omuson (“Omuson”).

The NUR 645 syllabus stated that there would be one final online exam that would cover all materials. AR 210. There would be no make-up examination unless technical issues proved to be involved. AR 210. The final exam would be administered from 8:00 a.m. to 10:00 a.m. for a total of two hours. AR 210. The exam time subsequently was changed to be from 9:00 a.m. to 11:00 a.m. AR 209. Nothing in the syllabus indicated that late submissions would be penalized. AR 24.

Elemuren took the examination in Texas, where he was staying at the time. AR 639. Elemuren was present at roll call for the examination at 8:30 a.m. AR 180. Due to severe weather that resulted in a power failure and the loss of internet service at his hotel, he was unable to log in and begin the examination at 9:00 a.m. AR 639. Elemuren did not contact CDU during the exam to report any technical issues. AR 180. At 9:38 a.m., before he had begun taking the exam, Omuson emailed Elemuren, informing him that he had been present for roll call and yet had not logged in to take the exam. AR 180. Omuson warned Elemuren that he “will receive a zero for not taking the exam.” AR 180.

Elemuren sought and found an alternative location for taking the examination and began taking the examination at 10:52 a.m. AR 27, 180. Elemuren submitted the examination at 11:47 a.m. AR 27. He answered 87 of the examination’s 100 questions correctly, which would have translated to a score of 43.5 out of a maximum of 50. AR 46.

While the system allowed Elemuren to submit his answers late, it only accepted answers until 11:00 a.m. AR 180. Elemuren’s answers entered after 11:00 a.m. were ignored. AR 180. As a result, Elemuren received a score of 17 out of 100. Id. Omuson subsequently gave five points credit to everyone in the class because two students had experienced technical difficulties, which brought Elemuren’s final score to 22 out of 100. AR 181. He received a C+ in the course, which was a failing grade. AR 212.

Elemuren later stated that he was under the impression that he had two hours to complete the examination so long as he started the examination anytime within the 9:00 a.m. to 11:00 a.m. timeframe, writing: “While it was stated that the test starts at 9am, nowhere was it mentioned that tests taken late will result in a failing grade.” AR 639. He contended that his actual score should be 87 out of 100. AR 639.

Between July 28 and August 3, 2020, Elemuren and Bisong exchanged several emails, with Elemuren asking to receive full credit for questions answered after 11:00 a.m. and Bisong denying Elemuren’s requests. AR 46-49. After not receiving an answer from Bisong for three days, on August 3, 2020, Elemuren emailed the Director of Student Affairs, Dr. Farnaz Saadat (“Saadat”), asking him to resolve the issue. AR 46.

In response, Bisong emailed Saddat and accused Elemuren of hacking the instructor system and being able to “manipulate and defraud the system to have a copy of the final exam even after it ended on 7/26/2020.” AR 42-45.

On September 4, 2020, Bisong emailed Saadat, claiming that Elemuren had “clicked the ignore button to offset the end time when the system prompted him that the exam would end in a few minutes. AR 181. Bisong stated that there had been a ticket sent to the IT department to obtain more information about how Elemuren had defrauded the system. AR 181. During the conference meeting, Elemuren claimed that he had to travel out to use the internet for the exam and later said that he had to use his sister’s hotspot and computer. Which was it? AR 182. Bisong noted that his sister and two other students were in Texas taking the exam at the same time and all three took it with no service interruption. AR 182.[1]

Elemuren was not copied on either of Bisong’s emails to Saadat. See AR 42-45, 179.

On August 18th, 2020, Elemuren appealed his final exam grade to CDU’s Grievance Committee. AR 639.

On August 26, 2020, the Grievance Committee reviewed the syllabi and Blackboard (the computer system through which the examination was taken) and noted that neither referenced a specific timeframe for the exam. AR 24. There was no reference to forfeiture if the exam was not completed in one sitting and there had been a technical glitch that enabled Elemuren to continue taking the exam outside the allotted two-hour period. AR 24. Both Bisong and Omusan expressed concerns to the Committee about Elemuren’s possible academic dishonesty. AR 24. The Grievance Committee noted that the syllabi stated that the instructor has the right to administer another exam if there are technical issues and decided to permit Elemuren to retake the examination. AR 25.

Omusan spent four days preparing a new exam for Elemuren. AR 607. She planned the exam for September 5, but Elemuren asked to take it earlier, on either September 1or 3, 2020. AR 192. Hence, the exam was scheduled for September 3^rd, 2020, from 11:00 a.m. to 1:00 p.m. AR 192.

On September 2, 2020, Saadat emailed Elemuren, informing him to download “Respondus for Proctorio” (the “Program”) in his Blackboard as well as stating “Please be noticed with activating this feature on blackboard your exam will be postponed.” AR 193.

At 11:00 a.m. on September 3, 2020, Elemuren notified Director Bisong, Omuson, Angelika Henry (the Blackboard expert), and Saadat that he did not read the email from Saadat regarding the exam instructions. AR 192. The faculty and director again asked Elemuren to download the Program per Saadat’s email instruction. Id. Elemuren could not take the exam until he did so. Id. Blackboard showed that Elemuren logged in twice and Saadat then warned Elemuren he needed to login only once to Blackboard or the exam would be terminated. Id.

By 2:30 p.m., faculty and staff had spent three and a half hours trying to assist Elemuren in downloading the Program. AR 193. Elemuren stated he had downloaded the Program but could not see the exam. Id. Angelika Henry, the Blackboard expert, stated that Elemuren did not download the Program, and this was the reason he was unable to access the exam link. Id.

At 2:30 p.m., Elemuren stated that he needed to go to work. AR 193. The decision was made that Elemuren would notify the director and faculty by the end of the day when he was ready to take the exam. Id. Around 5:00 p.m., Elemuren notified the director and Omuson that he would take the exam the following day, September 4, 2020, at 12:00 noon. Id.

The morning of September 4, 2020, Director Bisong, Omuson, and Saadat received emails from Elemuren asking about his access to the study guide that had been permitted for the July 26 exam and if the five extra credit points all the students received on that exam would be applied to his rescheduled exam. AR 192. Omuson responded that the same study guide for the July 26 exam was available on Blackboard for the rescheduled exam. AR 192. Omuson also stated that the five extra credit points were applied to all students on the July 26 exam due to two students having technical difficulties. AR 192.

When Elemuren logged in for the exam at 12 noon, he stated that he was not taking the exam until his concerns were resolved regarding the study guide. AR 193. Director Bisong informed Elemuren that the same study guide applied to both exams as this was a parallel exam. AR 193. Bisong informed Elemuren that if he continued to refuse to take the exam, he would receive a failing grade in the course. Id. Ultimately, Elemuren refused to take the exam, given that his questions/concerns remained unanswered. Id.

By 1:00 p.m., faculty put the materials and report together to update Provost Michael about the situation. AR 193. Since he did not take the final, Elemuren received a C+ in NUR 645, which is considered a failing grade in the course. AR 212.

On September 11, 2020, Elemuren had a follow-up meeting with Dean Breckenridge and

Director of Student Affairs Saadat, during which Elemuren acknowledged that he would fail the course because of his refusal to take the exam. AR 591. After being offered the opportunity to retake the course, Elemuren declined. He also declined to take a leave of absence from CDU. AR 566, 588-91, 598-600.

On September 14, 2020, Elemuren was administratively withdrawn from CDU because he “Failed course, but did not register for Fall to take [the] repeated course.” AR 131. The CDU stated that Elemuren “did not comply to many areas of the program at the level of usual student compliance; and continues to state he is correct and can graduate as is and does not need to retake NUR 646 and does not take accountability as an RN, FNP… [A]s a student in a Psych MHNP Program it is highly recommended that he retake NUR 646 and be compliant in these incompletes or be expelled from the program since he cannot graduate without these areas completed. Since this time, he has been administratively withdrawn from the program since he did not re-enroll in NUR 646 by the end of Drop/Add and did not take a leave of absence.” AR 592.

In a letter dated January 29, 2021, Interim Dean Barbara Ake (“Ake”) of CDU’s School of Nursing informed Elemuren that he was being dismissed from the PMHNP program. AR 2. Ake’s letter stated that Elemuren’s removal from the program was due to a “violation of student conduct and a violation of academic policies specific to academic dishonesty” and defined both those terms. Id.

The letter stated that Elemuren could appeal this decision by following the procedures outlined in the Student Handbook (Academic Grievance process, p. 36). Id. His written grievance should include a “single page indicating why you [Elemuren] should be allowed to continue in the program.” Id. The appeal should be delivered to the Director of Student Affairs within three “school/business days of this notification—but not later than February 5, 2021.” AR 3.

On February 1, 2021, Elemuren filed a grievance letter. AR 547, 566. On February 4, 2021, Provost Michael confirmed with Interim Dean Ake that Elemuren had been advised of his right to appeal and that the appeal process was underway. AR 545.

On Tuesday, February 9, 2021, the Grievance Committee met with Elemuren to act on his appeal. AR 562.

On February 18, 2021, the Grievance Committee communicated to Elemuren its decision after the February 9, 2021, meeting. AR 562, 564-565. The Committee stated that after careful review, it came to the unanimous decision to expel Elemuren. AR 564. The decision stated:

“Upon careful analysis of the student's statements and review of all the transcripts presented from previous meetings and e-mails between the student, faculty, Director, and the former Dean Dr. Breckenridge, the Grievance Committee has come to a unanimous decision to concur with the current Interim Dean, Dr. Ake's decision in this matter as follows: expelling the student, Kehinde Elemuren from Charles R. Drew University of Medicine and Science. Herein are the following reasons:

1). Academic integrity was compromised when the student failed to take the examination on time and went beyond the set time limit "by clicking the ignore button" hence received an unauthorized extension to complete the examination. This resulted to a failed grade because the score was 17 points which was raised to 22 after the additional 5 points credit awarded by the Faculty, Dr. Omusan. Overall score was 22/100.

2). Director Dr. Bisong and Faculty Dr. Omusan gave the student two subsequent opportunities to retake the examinations Sept. 3 & 4, 2020. In both instances student failed or declined to take the exam. Student refused on two separate occasions to take the test and further refused to retake the course as suggested by the previous Dean. If there were mishaps along the way, it is still student responsibility to seek arrangements to retake and, when it is feasible to retake an examination, to see to it that Proctorio, which is an authenticator tool for monitoring student conduct during the examination, is correctly downloaded to Blackboard. Section III -Student Conduct states: The student code of conduct assumes adherence to the rules and regulations of MMDSON. Each student is held accountable for maintaining personal integrity and, to the best of their ability, the integrity of the MMDSON community.” AR 564.

Petitioner Elemuren seeks a writ of mandate on the grounds that (1) he was entitled by law to fair procedure, he did not receive a fair hearing, and therefore his dismissal must be set aside, and (2) CDU’s decision to dismiss him is not supported by substantial evidence.[2]

CDU argues that the Supreme Court in Boermeester did not decide that a student at a private school necessarily is entitled to a hearing. See 15 Cal.5th at 78-80. It only decided that a private university must provide notice and opportunity to rebut the allegations. The student is only entitled to the opportunity to explain his version of the facts. USC, supra, 246 Cal.App.4th at 240. For Elemuren, that opportunity happened at the Grievance Committee meeting on February 9, 2021. A writ of mandamus may issue only if Elemuren was dismissed without fair procedure, but the procedure that led to Elemuren’s expulsion was not unfair. Rather, Elemuren’s own series of choices led to his dismissal. CDU granted Elemuren numerous opportunities to remain in the PMHNP program, all of which he rejected. He alone took the steps and made the decisions that led to his removal from the University. Opp. at 12.

Specifically, Elemuren ignored the September 2, 2020 exam instructions to download the software so that he could have retaken the exam on September 3, 2020. AR 192. He could have retaken the exam on September 4, 2020, but instead he irrationally insisted on a new study guide when one already existed for the course. Id. Between September 4 and September 14, 2020, Elemuren could have retaken the course by the Drop/Add date, but he refused. See AR 590. Elemuren also could have taken a leave of absence, but he refused. See AR 592. After receiving his dismissal on January 29, 2021, Elemuren appealed and met with the Grievance Committee on February 9, 2021. AR 564, 590. The Grievance Committee’s February 18, 2021 letter set forth in detail its careful consideration of Elemuren’s side of the story that he presented on February 9, 2021. AR 563. Elemuren’s attack on Bisong has nothing to do with the decision of the Grievance Committee. Elemuren subsequently failed to appeal to the Provost.[3] Opp. at 10, 13.

CDU is mixing academic grievances with student discipline. This mandamus case is not about Elemuren’s NUR 645 grade, it is about his dismissal from the PMHNP program. The Student Handbook outlines the academic grievance process for grades. AR 161, 163-64. The Student Handbook explains how a student should prepare an academic grievance, that it will be heard by the Student Affairs Committee, and that the student may appeal the decision to the Dean. AR 164. The Student Handbook states: “It is the responsibility of the student to move the process forward through each step.” AR 163.

Elemuren followed the grievance process with respect to his grade of zero for the final examination for the NUR 645 course. AR 180. On August 18th, 2020, Elemuren appealed his final examination grade to the Grievance Committee. AR 639. (Presumably, the Grievance Committee is the same entity as the Student Affairs Committee identified in the Student Handbook. AR 639.) On August 26, 2020, the Grievance Committee decided to permit Elemuren to retake the examination. AR 25.

The examination was rescheduled for September 5, but at Elemuren’s request, it was scheduled for September 3^rd, 2020, from 11:00 a.m. to 1:00 p.m. AR 192. On September 3, 2020, after several hours of difficulty with attempts by faculty and staff to assist him, Elemuren stated that he needed to go to work and subsequently stated that he would take the examination the following day, September 4, 2020 at 12:00 noon. AR 193.

On September 4, 2020, Elemuren asked about his access to the study guide and if the five extra credit points all students received for the July 26 exam would be applied to his rescheduled exam. AR 192. He was informed that the same study guide that was available for the July 26 exam was available on Blackboard for his rescheduled exam and that the five extra credit points for the July 26 exam had only been given because two students had technical difficulties. AR 192. Elemuren stated that he was not taking the exam until his concerns were resolved regarding the study guide. AR 193. After being informed that he would receive a failing grade in the course if he continued to refuse, Elemuren decided that he would not take the exam and received a zero for the examination. Id. Since he did not take the final, Elemuren received a C+ in NUR 645, which is considered a failing grade in the course. AR 212.

Elemuren did not file a grievance over this decision and subsequently acknowledged that he would fail the course because of his refusal to take the exam. AR 591. Elemuren also declined the opportunity to retake the course or to take a leave of absence. AR 566, 588-91, 598-600.

On September 14, 2020, CDU listed Elemuren as administratively withdrawn from the University because he failed the NUR 645 course and did not register to repeat it. AR 131. Dean Breckenridge informed Provost Michael in an email that it was highly recommended that Elemuren either retake NUR 646 or be expelled from the PMHNP program since he cannot graduate without these areas completed. AR 592.

At that point, CDU may have been well within the bounds of fair procedure to dismiss Elemuren from the PMHNP program for failing to complete it. The court cannot decide this issue because whether CDU was entitled to do so is dependent on whether (a) Dean Breckenridge was correct that NUR 646 is a necessary core requirement for the PMHNP program without which Elemuren could not graduate and (b) CDU could dismiss Elemuren for not completing this core requirement within a certain period.

But CDU did not dismiss Elemuren for failing to complete the PMHNP program. Instead, Interim Dean Ake’s January 29, 2021 letter stated that he was being dismissed from the PMHNP program due to a “violation of student conduct and a violation of academic policies specific to academic dishonesty”, and she defined both those terms. AR 2. In other words, CDU dismissed Elemuren for misconduct. As the Petition alleges, the January 29 letter stated that he was dismissed for committing violations of student conduct and policies specific to academic dishonesty. This allegation triggered a different set of fair procedure requirements than dismissal for failing to complete a requisite course.

Elemuren is correct (Pet. Op. Br. at 10) that he did not receive notice of any dishonesty charges as required by the fair procedure doctrine. Boermeester, supra, 15 Cal.5th 72 at 79. The January 29, 2021 letter merely listed the student conduct and academic dishonesty policies that he violated without providing any specific supporting facts. The notice required in a student disciplinary action must identify the specific rules that the student is alleged to have violated and the factual basis for the accusation. USC, supra, 246 Cal.App.4^th at 243-44. It is insufficient to provide the accused student with only a list of rules that have been violated. Ibid.

Elemuren also contends that he did not have a reasonable opportunity to be heard. Interim Dean Ake’s dismissal letter stated that Elemuren could appeal this decision by following the procedures outlined in the Student Handbook. AR 2. His written grievance should include a “single page indicating why you [Elemuren] should be allowed to continue in the program.” Id. The appeal should be delivered to the Director of Student Affairs within three “school/business days of this notification—but not later than February 5, 2021.” AR 3.

Elemuren argues that the dismissal letter’s direction did not provide a reasonable opportunity to be heard. First, he was expelled without any pre-deprivation opportunity to be heard. Second, the appeal process only permitted him to submit a maximum of one page in his defense which, given the complexity of the issues and the seriousness of Elemuren’s expulsion, was woefully inadequate. Third, the one-page appeal was required to be submitted within three business days of the expulsion decision, which hardly provides a student with enough time to draft such an important document. Finally, perhaps the most absurd element of the appeal process is that Elemuren was required to respond to the dismissal without knowing what the accusations were. Pet. Op. Br. at 11.

The court agrees that an appeal from a dismissal without knowing what the accusation is does not satisfy fair procedure. However, the court need not decide whether the three-day appeal filing period and limitation of the appeal to one page met fair procedure requirements.[4] Elemuren was able to timely file a grievance appeal. AR 547, 566. He makes no showing that the three-day period or one-page limit prejudiced him in doing so. There also is no requirement in fair procedure -- or in many due process circumstances – of a pre-deprivation hearing before discipline is imposed. A post-deprivation hearing often will suffice, and that is exactly what the Grievance Committee appeal was.

On February 9, 2021, the Grievance Committee met with Elemuren and denied his appeal on February 18, 2021. AR 562, 564-65. The Grievance Committee stated that it had reviewed Elemuren’s statements, transcripts from meetings with him, and pertinent emails, and upheld his expulsion because:

2). Director Dr. Bisong and Faculty Dr. Omusan gave the student two subsequent opportunities to retake the examinations Sept. 3 & 4, 2020. In both instances student failed or declined to take the exam. Student refused on two separate occasions to take the test and further refused to retake the course as suggested by the previous Dean. If there were mishaps along the way, it is still student responsibility to seek arrangements to retake and, when it is feasible to retake an examination….Each student is held accountable for maintaining personal integrity and, to the best of their ability, the integrity of the MMDSON community.” AR 564.

This decision appears to be a mixture of concepts. First, the Grievance Committee found that Elemuren committed a violation of academic integrity when he took the first exam. Second, it found that Elemuren was responsible for failing to retake the exam. The decision does not expressly address Interim Dean Ake’s dismissal for a “violation of student conduct and a violation of academic policies specific to academic dishonesty”. It also does not address the impact of Elemuren’s failure to get a passing grade in the NUR 645 course and whether he should be dismissed from the PMHNP program for that failure.

Additionally, the Grievance Committee stated that it reviewed Elemuren’s statements, transcripts from meetings with him, and pertinent emails without verifying that he had received these documents. The requirements for a fair hearing do not allow an administrative decisionmaker to rely on evidence not revealed to the accused. USC, supra, 246 Cal.App.4^th at 247. An accused student is entitled to copies of all the evidence presented to or considered by the decisionmaker. Id. An administrative tribunal may not rely on its own information or consider as evidence matter that was not introduced at a hearing of which the parties had notice or were present. Id. at 248. This information must be provided by the university prior to the hearing, and the university may not require the accused student to specifically request this information. Id. at 246.

In sum, CDU failed to notify Elemuren of the charges and failed to ensure that he had all evidence relied upon by the Greivance Committee. As a result, the University did not follow fair procedure.

Elemuren relies on a recent appellate case, Campbell v. Career Development Institute, Inc., (“Campbell”) (2023) 97 Cal.App.5^th 1109. Pet. Op. Br. at 5-6.

In Campbell, a nursing student was expelled from a private university by a letter stating that he had been rude in an incident earlier that day. Id. at 1111. The student was not provided with a hearing, nor was one required by the university’s procedures. Ibid. The student appealed his expulsion, but the university denied his appeal. Id. at 1112.

Campbell sought administrative mandamus in superior court to challenge his expulsion, but the trial court ruled that he was not entitled to a hearing because due process did not apply to a private university and the school’s procedures did not provide for a hearing. Id. The appellate court relied on Boermeester to reverse the trial court and remand for a determination determine whether the fair procedure doctrine applied to Campbell’s dismissal. Id. at 1113. If so, the trial court must determine whether a hearing was required and whether the school provided a sufficient one. Id.

Elemuren argues that the facts in the present case are virtually identical to the facts in Campbell. He did not receive a hearing before expulsion (AR 2), he was dismissed by a letter, without a hearing and an opportunity to be heard (AR 2-3), and his appeal was denied. (AR 564). Therefore, a mandamus writ is appropriate. Pet. Op. Br. at 5-6.

CDU argues that Elemuren failed to exhaust his administrative remedies by seeking an ad hoc appeal hearing from the Provost. CDU’s Policy for Student Appeals and Grievances is published in the University Catalog with a procedure for student appeals and grievances to the Provost for an ad hoc appeal hearing. AR 146. A student can request an ad hoc hearing to submit to the Provost within ten days after the Dean renders a final decision. Id. Elemuren did not do that. The University Catalog is clear: “It is the responsibility of the student to move the process forward through each step.” AR 163-64. Opp. at 9-10.

Elemuren did not fail to exhaust his administrative remedies because he was never informed of his right to a Provost appeal. Before Elemuren’s Grievance Committee appeal from his dismissal, Interim Dean Ake took care in her January 29, 2021 letter to refer him to the Student Handbook’s Academic Grievance process and inform him that his written grievance should be a single page and delivered to the Director of Student Affairs not later than February 5, 2021. AR 3. Provost Michael confirmed with Interim Dean Ake that she had advised Elemuren of his right to appeal. AR 545. Yet, there is no evidence that either of them informed Elemuren of his right to a Provost ad hoc appeal. Nor was such a notice provided in the Grievance Committee decision. AR 564-65.

Notice of this right to a final appeal is particularly important because the Provost ad hoc appeal procedure is not discussed in the Student Handbook with the academic grievance process. AR 163-64. Instead, it is separately set forth in the University Catalog. AR 143, 146. The Student Handbook is a document that Elemuren could be expected to have, but there is no evidence that Elemuren possessed the University Catalog.[5]

Apart from the documents Elemuren can be expected to have, the Dean had an independent obligation to ensure that Elemuren knew he had the right to seek a Provost ad hoc appeal. The University Catalog expressly states that the Dean of each CSU school is “responsible for ensuring that the college/school maintains appropriate student policies and procedures that are reasonable, well publicized, and administered fairly and consistently, for filing a report of misconduct or an appeal or grievance.” AR 143 (emphasis added). The Dean of each school “will ensure that enrolled students receive and acknowledge receipt of this policy on an annual basis, as well as any distinct set of misconduct, appeal, or grievance policies and procedures tailored to its specific student.” AR 143 (emphasis added). The Dean of Student Affairs further will ensure that CDU’s student service units maintain a copy of the Student Appeals and Grievances and related policies and procedures regarding the “due process” rights and responsibilities of students for filing an appeal or grievance. AR 143.

CDU failed to follow its own procedure of ensuring that Elemuren knew of his right to seek a Provost ad hoc appeal. Elemuren did not fail to exhaust his administrative remedies because he was never informed of its existence in violation of fair procedure and CDU’s own policies. See Berman v. Regents of University of California, supra, 229 Cal.App.4th at 1271-72 (university must follow is own policies and procedures).

In sum, CDU failed to notify Elemuren of his right to seek a Provost ad hoc appeal. As a result, the University did not follow fair procedure and its own policies.

Elemuren argues that CDU’s decision is not supported by substantial evidence and the court should order his reinstatement as a CDU student. He contends that the administrative record contains private emails between CDU staff that reveal Bisong, who is a convicted felon, was the driving force behind the accusations.

Following Elemuren’s email to Saadat, Bisong accused Elemuren of manipulating and defrauding the system “to have a copy of the final exam even after it ended on 7/26/2020.” AR 42-45. Bison stated that it is “clear from this point Kehinde [Elemuren] has a way to crack in to [sic] the system to retrieve all these information [sic] jeopardizing any of our exams.” AR 44. Bisong reached this conclusion because Elemuren was able to produce a printout of the examination answers, with student feedback for the wrong answers, to which he should not have had access. Elemuren argues that it does not take a computer expert to realize that a document that provides “response feedback” for wrong answers is most likely meant for students. Pet. Op. Br. at 12.

Elemuren further argues that Bisong’s attacks escalated after he prevailed on his grade appeal. She claimed that Elemuren lied about his clinical hours and that his clinical preceptor was licensed as a psychiatric mental health nurse practitioner. AR 186. Even after she conceded that Elemuren had told the truth about both, she still accused him, without evidence, of colluding with his preceptor to lie about his hours. AR 189. Bisong’s character, her lack of credibility as a felon, and her false accusations are significant because the Grievance Committee considered her emails in its dismissal decision. AR 564. Elemuren concludes that the court should determine that CDU’s allegations against him are not supported by substantial evidence. Pet. Op. Br. at 12-13; Reply at 4.

Elemuren puts the cart before the horse. Neither the court nor Elemuren know what the charges against him are. If the charge is that he failed to complete a necessary course and cannot obtain his degree as a result, the evidence on that issue has been mostly presented. If the charge is that Elemuren committed a violation of academic integrity by acting dishonestly, the evidence has not been completely aired on that issue. Either way, the court cannot consider the merits of any ground for his dismissal without knowing what the charge is and without each party having an opportunity to present evidence on that charge.

The Petition is granted. A judgment and writ shall issue remanding the matter to CDU for it to decide the charges against Elemuren. The required fair procedure will differ depending on that determination. If CDU intends to dismiss Elemuren from the PMHNP program for failing to complete NUR 646, it may be able to do so with little additional procedure. If CDU intends to dismiss him for academic misconduct, fair procedure will require more. That decision lies within CDU’s discretion.

Elemuren’s counsel is ordered to prepare a proposed judgment and writ, serve them on CDU’s counsel for approval as to form, wait ten days after service for any objections, meet and confer if there are objections, and then submit the proposed judgment and writ along with a declaration stating the existence/non-existence of any unresolved objections. An OSC re: judgment is set for May 23, 2024 at 9:30 a.m.

[1] Bisong further accused Elemuren of lying about his clinical hours and in claiming that his clinical preceptor was licensed as a psychiatric mental health nurse practitioner, which is a CDU requirement. AR 186. in fact, the preceptor was only licensed as a family nurse practitioner. AR 186. Bisong subsequently acknowledged that Elemuren’s preceptor was licensed as a psychiatric mental health nurse practitioner and that the preceptor confirmed Elemuren’s clinical hours. AR 189. She speculated that Elemuren’s preceptor could have “quickly signed off” Elemuren’s clinical log because he and Elemuren used to be co-workers. AR 189.

[2] The Petition’s breach of contract claim is subsumed within the administrative mandamus claim.

[3] CDU’s opposition also contends that Elemuren failed to appeal to the Bureau for Private Postsecondary Education (“BPPE”). Opp. at 13. BPPE is a consumer protection agency for higher education institutions in California. AR 144. There is no evidence that BPPE has authority to compel CDU to reinstate a dismissed student.

[4] This is especially true given the availability of a subsequent Provost ad hoc appeal.

[5] CDU’s opposition incorrectly cites the University Catalog’s requirement that the student must move the grievance process forward (AR 163-64) as including the Provost ad hoc appeal. They grievance process and the Provost appeal are different.