Judge: Mary H. Strobel, Case: 22STCP02584, Date: 2022-10-13 Tentative Ruling

Case Number: 22STCP02584    Hearing Date: October 13, 2022    Dept: 82

            Petitioner John Doe (“Petitioner”) moves for a stay under CCP section 1094.5(g) of the administrative decision of Respondent University of Southern California (“Respondent” or “USC) suspending Petitioner from USC for the period of May 16, 2022, to May 12, 2023. 

Background

USC is a private research university with undergraduate enrollment of approximately 21,000 students.  (Allard Decl. ¶ 2.)  Petitioner is an undergraduate student at USC.  Petitioner asserts that he has been diagnosed as having significant deficits in attention and working memory.  (Mot. 10; Doe Decl. generally; and Allard Decl. Exh. 4.)

USC’s Student Conduct Code

            USC maintains policies, applicable to all students, to promote academic integrity.  (Allard Decl. ¶ 4, Exh. 1.)  The Student Code includes detailed policies relating to academic integrity.  The Student Code states: “General principles of academic integrity include and incorporate the concept of respect for the intellectual property of others, the expectation that individual work will be submitted unless otherwise allowed by an instructor, and the obligations both to protect one’s own academic work from misuse by others as well as to avoid using another’s work as one’s own. All students are expected to understand and abide by these principles. Faculty members may include additional classroom and assignment policies, as articulated on their syllabus.”  (Id. at 8.) 

            As relevant to this writ petition, the Student Code also states the following:

The Student Conduct Code articulates violations that are most common and readily identifiable.  Conduct violating university community standards that is not specifically mentioned may still be subject to disciplinary action.

            …[¶]

            The following are examples of violations of these and other university standards.

            11.11

A. The submission of material authored by another person but represented as the student’s own work, whether that material is paraphrased or copied in verbatim or near-verbatim form.

….[¶]

C. Improper acknowledgment of sources in essays or papers.

(Allard Decl. Exh. 1 at 8-9.)

Petitioner’s Prior Violations of Academic Integrity Policies

            Although not discussed in Petitioner’s motion for stay, the record shows that he was found guilty of two violations of Academic Integrity Policies prior to the misconduct at issue in the instant writ petition.  These prior violations, in conjunction with a third alleged violation, are highly relevant to whether a stay would be against the public interest.

            Specifically, on or about April 29, 2021, Petitioner submitted an essay that generated an approximately 83% similarity index to another paper that was previously submitted.  He was found responsible for using a portion of a previously submitted essay without permission and sanctioned with a zero on the assignment.  Second, on or about October 22, 2021, Petitioner posted a quiz question online during the exam and then completed the answer after another individual responded to his post and provided the answer.   Petitioner was found responsible for acquiring solutions to academic work, distributing an exam without the express permission of the instructor, and dishonesty, among other things.  As part of the academic violations, Petitioner was found to be “dishonest to the professor by stating that he had posted the question … after the exam because he was not confident with his answer.”  His sanction included a Deferred Suspension, an F for the course, and he was required to complete Academic Integrity Tutorials.  (See Allard Decl. Exh. 3.) 

The petition does not challenge these findings or the associated penalties. 

Petitioner’s Third Violation of Academic Integrity Policies

            In Fall 2021, Petitioner was enrolled in Government and Business PPD 357 with Professor Michael Thom.  On or about December 15, 2021, Professor Thom noticed that a portion of Petitioner’s response to Question 14 (regarding cryptocurrency) on the final exam was plagiarized.  After discussing the matter with Petitioner and obtaining Petitioner’s explanation, Professor Thom reported the violation to the Student Judicial Affairs and Community Standards (“SJACS”).

Professor Thom’s Faculty Report copied Petitioner’s “Given Answer” to the Question 14 and highlighted the following two sentences from Petitioner’s answer as being potentially plagiarized from an external website:

The Howey test is critical for investors and project backers to understand where blockchain and digital currency projects stand. The test may reveal that some cryptocurrencies and initial coin offerings (ICOs) fulfill the concept of a investment contract.

Below Petitioner’s answer, Professor Thom included the text that Petitioner appeared to have copied verbatim from an external website in a text box. (Allard Decl., ¶ 5, Exh. 2, p. 39.)  Professor Thom informed SJACS that Petitioner had explained that the plagiarism was not intentional and that he asked that Professor Thom “not report the matter to SJACS because he had a previous incident.”  (Ibid.)

SJACS investigated Professor Thom’s Faculty Report.  During the investigation, Petitioner admitted that a portion of his response was copied from another source without citation.  As an excuse, Petitioner asserted that Professor Thom refused to honor an Office of Student Accessibility Services (“OSAS”) accommodation for extended time on the final exam, which resulted in Petitioner inadvertently failing to rephrase material he copied from his notes. (Allard Decl., ¶ 6, Exh. 3.)  SJACS cited evidence, including statements from Professor Thom, that Petitioner was given extra time for the exam, that Petitioner did not use all of the extra time, and that Petitioner completed Question #14 well before submitting the exam.  (Ibid.)  SJACS also found that Petitioner’s new explanation was “inconsistent” with Petitioner’s original explanation to Professor Thom.  Moreover, SJACS found that Student Code sections 11.11.A and 11.11.C do not allow for exceptions for a student submitting plagiarized material and “the focus is on the submission, not the intent.”  (Ibid.)  Based on the investigation, SJACS found that Petitioner violated USC’s academic integrity standards, particularly sections 11.11.A and 11.11.C of the Student Code.  (Ibid.) 

On March 3, 2022, SJACS Judicial Officer Taylor Dohm issued SJACS’ decision and sanctions.  Officer Dohm concluded that Petitioner should be suspended from USC effective May 16, 2022 through May 12, 2023, and receive an F in the course.  Officer Dohm based the sanction decision, in part, on Petitioner’s conduct history, including his two prior violations of the Student Code.  (Allard Decl., ¶ 6, Exh. 3.) 

On March 24, 2022, Petitioner appealed the decision. The Student Behavior Appeal Panel met on April 21, 2022, and recommended that the appeal be denied.  On May 10, 2022, Monique S. Allard, Interim Vice President for Student Affairs, accepted the Appeal Panel’s recommendation and affirmed the sanctions against Petitioner.  (Allard Decl. Exh. 5-6.) 

Procedural History

            On July 11, 2022, Petitioner filed a petition for writ of administrative mandate against Respondent. 

            On September 20, 2022, Petitioner filed this motion for stay.  The court has received Respondent’s opposition and Petitioner’s reply.

Summary of Relevant Law

Code of Civil Procedure section 1094.5(g) provides, in pertinent part:

(g) Except as provided in subdivision (h), the court in which proceedings under this section are instituted may stay the operation of the administrative order or decision pending the judgment of the court, or until the filing of a notice of appeal from the judgment or until the expiration of the time for filing the notice, whichever occurs first.  However, no such stay shall be imposed or continued if the court is satisfied that it is against the public interest.

The administrative stay provision of Section 1094.5(g) “requires the superior court to weigh the public interest in each individual case.” (Sterling v. Santa Monica Rent Control Bd. (1985) 168 Cal.App.3d 176, 187.) 

Analysis

A Stay is Against the Public Interest

            Petitioner argues, generally, that “[w]ithout a stay, students suffer the lasting and irreparable consequences of the discipline and sanctions, including lengthy separation from their educational programs and activities, even if the student ultimately prevails on the merits of their writ petition.”  (Mot. 9.)  According to Petitioner, the university suffers no harm from a stay because it “can impose the discipline and sanctions later, should the university or college prevail.”  (Ibid.)  With regard to his own case, Petitioner argues tersely that he “will be irreparably, materially and adversely hindered by being required to leave USC for a year and denied all access to his education and the loss of his reputation.”  (Mot. 13.)

            The court is concerned only with the public interest in granting a stay in this case, not Petitioner’s generalized arguments about university discipline.  In his declaration, Petitioner does not identify any specific harm to his education, his reputation, or his career plans that he would suffer if the administrative order is not stayed.  Petitioner simply states that “I am asking for a stay because I do not want to suffer the negative consequences of the suspension sanction if the court later determines, after a review on the merits, that Respondents were wrong.” (See Doe Decl. ¶ 25.)  However, that rationale applies in any motion for stay and does not, in itself, show that a stay would not be against the public interest in this case.  Significantly to the court, Petitioner fails to address his prior disciplinary history in the motion or his declaration. 

            Respondent argues that a stay would be against the public interest because “public policy requires deference to decisions made by educational institutions in matters of student affairs and discipline” and “forcing USC to allow an individual it has repeatedly found to act dishonestly and unethically to return to school and enroll in classes would be damaging to the experiences of every other student and threaten the integrity of USC as an institution.”  (Oppo. 10-12.)  Respondent’s arguments are persuasive under the circumstances of this case.

            Given the seriousness of the academic violations for which Petitioner was found responsible, the closeness in time and similarity in those violations, and the importance of academic integrity to USC’s objectives as an academic institution and to its entire student body, a stay of the administrative decision would be against the public interest.  This conclusion mandates denial of a motion for stay under section 1094.5(g) without consideration of any arguments made by the parties concerning Petitioner’s likelihood of success or the balance of harms.

Petitioner’s Probability of Success and the Balance of Harms Do Not Justify a Stay Under CCP Section 1094.5(g)

CCP section 1094.5(g) only instructs the court to consider whether a stay would be against the public interest.  By comparison, section 1094.5(h) states that the court must also consider whether the “... agency is unlikely to prevail ... on the merits ....”  Section 1094.5(g) does not include that requirement.  The parties cite no published appellate decision holding that the trial court ruling on a motion pursuant to section 1094.5(g) must (or should) also consider preliminary injunction factors, specifically likelihood of success and balance of harms, or conduct the merits analysis required by section 1094.5(h).   Indeed, as Petitioner states, “[t]his is not a preliminary injunction.”  (Mot. 9:21.)

Nonetheless, in some circumstances, a petitioner seeking a stay under section 1094.5(g) may plausibly be able to show that a stay would be in the public interest based on compelling arguments about his probability of success on the writ petition or irreparable harm to the petitioner.  Thus, for instance, if the petitioner showed a high likelihood of success and strong reasons to believe the administrative decision would be set aside, that could suggest a stay would be in the public interest.  In this case, however, Petitioner’s arguments do not convince the court that a stay would be in the public interest.

Numerous Court of Appeal cases have affirmed that student misconduct proceedings at public and private universities do not involve a fundamental vested right, and that the substantial evidence standard applies in the trial court.   (See e.g. Doe v. Occidental College (2019) 40 Cal.App.5th 208, 220-221; Doe v. Allee (2019) 30 Cal.App.5th 1036, 1060; Doe v. University of Southern California (2016) 246 Cal.App.4th 221, 238, 239, 248-249; Doe v. Regents of the University of California (2016) 5 Cal.App.5^th 1055, 1073-1074.)  Petitioner’s arguments must be considered in light of that deferential standard.

Petitioner argues that he did not commit plagiarism, in violation of the Student Conduct Code section 11, because: (1) a “short answer in a time, open-notes exam is not plagiarism” as corroborated by the expert opinion of Chris Anson, Ph.D.; (2) “Prof. Thom allowed students to access their notes to answer the multiple choice and short answer questions on the final examination”; (3) “Information from his class notes and independent study notes are not ‘papers and essays’ that fall under Student Conduct Code § 11.11 A. and C”; and (4) “Michael Thom’s own ‘Given Answer’ to Question 14 also violates Student Conduct Code, § 11.11 because his ‘Given Answer’ paraphrases information about the Howey test without any attribution at all, and without any acknowledgment of sources.”  (Mot. 12-13.)

None of these arguments supports a conclusion that there is a public interest in granting a stay.  Petitioner relies on an expert opinion of Chris Anson, Ph.D., dated September 19, 2022, after the final administrative decision was issued. In general, “a hearing on a writ of administrative mandamus is conducted solely on the record of the proceedings before the administrative agency.” (Toyota of Visalia, Inc. v. New Motor Vehicle Bd. (1987) 188 Cal.App.3d 872, 881.)  Petitioner has not argued or shown that Dr. Anson’s opinion is admissible, extra-record evidence pursuant to CCP section 1094.5(e). 

Moreover, under substantial evidence review, Dr. Anson’s opinion likely would not be dispositive, in any event.  Petitioner was found guilty of violation section 11.11A of the Student Code, which prohibits “[t]he submission of material authored by another person but represented as the student’s own work, whether that material is paraphrased or copied in verbatim or near-verbatim form.”  Section 11 of the Student Code also expressly states that “Conduct violating university community standards that is not specifically mentioned may still be subject to disciplinary action.”  Section 11 is not limited to essays and papers and could be reasonably interpreted by Respondent to encompass plagiarism on Question 14 of Petitioner’s final exam. 

            Petitioner cites no evidence from the administrative record supporting his argument that by allowing for an “open notes” exam, Professor Thom authorized students to copy statements from other sources without citation or attribution.  That argument appears unsupported.

Petitioner incorrectly attributes the “Given Answer” to Professor Thom. As argued in opposition, and conceded in reply, “the ‘Given Answer’ that Petitioner is referencing is his own answer.”  (Oppo. 14; Reply 6.) The Faculty Report copied Petitioner’s “Given Answer” to the Question 14 and highlighted the following two sentences from Petitioner’s answer as being potentially plagiarized from an external website:

The Howey test is critical for investors and project backers to understand where blockchain and digital currency projects stand. The test may reveal that some cryptocurrencies and initial coin offerings (ICOs) fulfill the concept of a investment contract.

Below Petitioner’s answer, Professor Thom included the text that Petitioner appeared to have copied verbatim from an external website in a text box. (Allard Decl., ¶ 5, Exh. 2, p. 39.)  Contrary to Petitioner’s assertion, therefore, the evidence does not show that “Michael Thom’s own ‘Given Answer’ to Question 14 also violates Student Conduct Code, § 11.11.” 

            During the investigation, Petitioner admitted that a portion of his response was copied from another source without citation.  As an excuse, Petitioner asserted that Professor Thom refused to honor a disability accommodation for extended time on the final exam, which resulted in Petitioner inadvertently failing to rephrase material he copied from his notes. (Allard Decl., ¶ 6, Exh. 3.)  However, SJACS cited evidence, including statements from Professor Thom, that Petitioner was given extra time for the exam, that Petitioner did not use all of the extra time, and that Petitioner completed Question 14 well before submitting the exam.  (Ibid.)  SJACS also found that Petitioner’s new explanation was “inconsistent” with Petitioner’s original explanation to Professor Thom.  (Ibid.)  As Respondent points out, Petitioner’s Letter of Accommodation also states that “Students should make arrangements directly with their faculty member(s) at least one week in advance of the … exam date.”  (Allard Decl. Exh. 4.)  Professor Thom reported that Petitioner did not communicate with him about an extended time accommodation prior to the final exam.  (Id. Exh. 3.) 

At the writ trial, the court will review Respondent’s findings related to Petitioner’s excuse for the plagiarism for substantial evidence.  In his motion to stay, Petitioner has not shown that he will clearly or necessarily prevail on that issue.  While the court does not adjudicate the issue for a motion to stay, there appears to be evidence from which a reasonable person could conclude that Petitioner admitted to plagiarism and had no valid excuse within the framework of Section 11 of the Student Conduct Code. 

The court has considered all of Petitioner’s reply arguments, some of which were not raised in the moving papers.  (See Reply 6:17-7:16 [new arguments about lack of adequate notice].)  “The salutary rule is that points raised in a reply brief for the first time will not be considered unless good cause is shown for the failure to present them before.”  (Balboa Ins. Co. v. Aguirre (1983) 149 Cal.App.3d 1002, 1010.)  Petitioner does not show good cause to raise new arguments in reply.  In any event, his new arguments do not change the court’s conclusion.  Respondent has a reasonable argument that section 11 of the Student Conduct Code gave Petitioner fair notice that the plagiarism at issue was prohibited and could result in academic sanctions.  Significantly, Petitioner concedes that he had a history of academic integrity violations within a close period of time as the violation at issue.  (Reply 9.)  Petitioner “did not appeal the decisions in either previous SJACS case.”  (Ibid.)

Based on the foregoing, a stay of the administrative decisions would be against the public interest. 

Conclusion

            The motion is DENIED.