Judge Mitchell L. Beckloff, Case 21STCP04155 2023-02-01 Tentative Ruling

Judge: Mitchell L. Beckloff, Case: 21STCP04155, Date: 2023-02-01 Tentative Ruling

Petitioner, John Doe, seeks an order compelling Respondent, University of Southern California (USC), to set aside its December 16, 2021 imposition of academic discipline upon him—a grade of fail for an online biology course. USC opposes the petition.

The facts underlying the academic discipline imposed on Petitioner by USC are straightforward and not in dispute.

Petitioner enrolled in a course entitled General Biology: Cell Biology and Physiology at USC (BISC 220) during the Spring 2021 semester. Professor Rory Spence, Ph.D. taught the course. (AR 4, 7.)

On March 19, 2021, Professor Spence administered an online examination for the course by way of Blackboard.[1] (AR 1, 5-7.) Professor Spence did not permit students to use outside resources during the online examination. (AR 1, 5-7.)

After the examination, Professor Spence received an anonymous report some students had accessed and viewed a shared Google document titled “Class Notes” during the examination. (AR 1, 5-7.) The shared document had been created by a student who shared it with others for studying purposes by posting it on Blackboard. (AR 7.)

USC’s information technology (IT) services provided Professor Spence with the names, dates, times, and internet protocol (IP) addresses of the six students who allegedly accessed the shared Class Notes document during the examination. (AR 1, 5-7.) According to USC, the IT log indicated Petitioner accessed the Class Notes document multiple occasions during the one-hour examination period, accessing cell communication, metabolism, and photosynthesis subjects. (AR 2, 8-12.)

The next day, on May 16, 2021, Petitioner emailed USC’s Student Judicial Affairs and Community Standards (SJACS) asking to speak with someone about Professor Spence’s allegations and his missing grade. (AR 35.) SJACS responded on May 17, 2021: “When our office receives a report of alleged academic integrity misconduct, our director carefully reviews the information prior to officially notifying the student via your USC email. Notification may take a couple of weeks from the time the report is received and a MG will remain in place until completion of our process.” (AR 35.) SJACS advised Petitioner he would be able to meet with a judicial officer “to review the submitted report, share [his] perspective, and learn the next steps[.]” (AR 35.) On June 1, 2021, Petitioner contacted SJACS asking for an update on the status of the investigation. (AR 35-36.)

On July 12, 2021, Petitioner participated in an online SJACS Conduct Review meeting with SJACS hearing officer Nancy Dominguez. (AR 4.) During the meeting, Dominguez allowed Petitioner to review Professor Spence’s report and the IT logs documenting his alleged access to the Class Notes through an online access portal. (AR 4.) Petitioner acknowledged reviewing the documents and evidence through USC’s secure share site. (AR 4, 13-14.) Dominguez also read Professor Spence’s report to Petitioner during the meeting. (AR 4.)

Dominguez gave Petitioner an opportunity to submit evidence in response to the allegations. (AR 4.) During the meeting, Petitioner denied having any other program, window or browser open on his computer during the examination. (AR 2, 4.) Petitioner, referring to the IT logs, asked Dominguez “where USC IT services obtained the information . . . .” (AR 4.) Dominguez advised Petitioner she believed “based on the burden of proof” Petitioner accessed the Class Notes document “based on the timestamps.” (AR 4.) Petitioner then told Dominguez “ ‘My parents want a decision now.’ ” (AR 4.) Dominguez asked Petitioner what he wanted. She said,

“ ‘What about you? Do you want a decision now?’ ” (AR 4.) Petitioner told Dominguez, “ ‘Yes’.” (AR 4.) Dominguez told Petitioner she would find him “responsible” and a written decision would follow. (AR 4.) Dominguez provided Petitioner with his appeal rights, and Petitioner indicated to Dominguez he “had no other questions or comments or concerns.” (AR 4.) Petitioner also advised Dominguez the meeting could end. (AR 4.)

In a written decision, Dominguez concluded a preponderance of the evidence supported finding Petitioner responsible for violating the Student Conduct Code at sections 11.13.A, 11.13.C, and 11.21.[3] (AR 1-3, 244.)

On July 17, 2021, Petitioner appealed SJACS’ decision. Petitioner asserted new evidence (his browser history and an article about similar allegations at another university) had become available which was sufficient to alter the decision. He also alleged Dominguez deviated from university rules or regulations. (AR 137-141.)

The Student Behavior Appeal Panel (Appeal Panel) met on September 10, 2021 to consider Petitioner’s appeal. (AR 43.) The Appeal Panel recommended the conclusions and sanctions imposed by SJACS be affirmed. (AR 44-47.)

On December 16, 2021, after reviewing the appeal panel’s recommendation, Monique S. Allard, Interim Vice President for Student Affairs, affirmed SJACS’s findings. Allard denied Petitioner’s appeal finding Petitioner responsible for violating sections 11.13.A, 11.13.C and 11.21 of the Student Conduct Code. Allard affirmed the sanctions imposed—a grade of fail in BISC 220. (AR 48.)

Under Code of Civil Procedure section 1094.5, subdivision (b), the issues for review of an administrative decision are: whether the respondent has proceeded without jurisdiction, whether there was a fair trial, and whether there was a prejudicial abuse of discretion. An abuse of discretion is established if the respondent has not proceeded in the manner required by law, the decision is not supported by the findings, or the findings are not supported by the evidence. (Code Civ. Proc. § 1094.5, subd. (b).)

Petitioner asserts two grounds as a challenge to USC’s decision. First, he argues USC denied him a fair hearing. Second, he contends the evidence does not support the findings.

Code of Civil Procedure section 1094.5’s “ ‘ requirement of a “ ‘fair trial’ ” means that there must have been “a fair administrative hearing.” ’ ” (Doe v. University of Southern California (2016) 246 Cal.App.4th 221, 239.) The fairness of an administrative proceeding is reviewed as a question of law, reviewed under the independent judgment standard. (Doe v. Westmont College (2019) 34 Cal.App.5th 622, 634.) That is, the court exercises its independent judgment on legal issues.

With respect to the sufficiency of the evidence, the parties appear to disagree about this court’s standard of review. (See Opening Brief 18:19.) Petitioner suggests the court must use its independent judgment to determine whether the weight of the evidence supports USC’s findings.[4] USC argues the more deferential substantial evidence standard of review applies.

The court agrees with USC. It is well established in student discipline cases this court reviews USC’s decision under the substantial evidence standard. (Doe v. University of Southern California (2018) 28 Cal.App.5th 26, 35-36.)

On substantial evidence review, “the trial court will affirm the administrative decision if it is supported by substantial evidence from a review of the entire record, resolving all reasonable doubts in favor of the findings and decision.” (M.N. v. Morgan Hill Unified School Dist. (2018) 20 Cal.App.5th 607, 616.) The court must “accept all evidence which supports the successful party, disregard the contrary evidence, and draw all reasonable inferences to uphold the [administrative decision]. [Citation.] Credibility is an issue of fact for the finder of fact to resolve [citation], and the testimony of a single witness, even that of a party, is sufficient to provide substantial evidence to support a finding of fact. [Citation.]” (Doe v. Regents of the University of California (2016) 5 Cal.App.5th 1055, 1074.)

Under this “deferential” standard of review, the court presumes the correctness of the administrative ruling. (Patterson Flying Service v. California Dept. of Pesticide Regulation (2008) 161 Cal.App.4th 411, 419; see also Doe v. Regents of the University of California, supra, 5 Cal.App.5th at 1073 [substantial evidence standard is “extremely deferential standard of review”].)

Petitioner alleges USC failed to provide him with a fair hearing in three ways. First, he claims USC did not following its policies and procedures because Professor Spence did not meet with him to review the cheating allegation and the evidence. Second, USC denied him access to the evidence and an opportunity to present a defense. Finally, Petitioner claims USC did not act impartially.

Fair hearing requirements are “flexible” and entail no “rigid procedure.” (Binkley v. City of Long Beach (1993) 16 Cal.App.4th 1795, 1807.) “Although no particular form of student disciplinary hearing is required under California law, a university is bound by its own policies and procedures.” (Doe v. Regents of University of California, supra, 5 Cal.App.5th at 1078.)

“[F]undamental fairness requires that a disciplinary proceeding afford an accused student ‘a full opportunity to present his defenses.’ ” (Doe v. Allee (2019) 30 Cal.App.5th 1036, 1062.) “[T]o comport with due process,” the university's procedures must “ ‘be tailored, in light of the decision to be made, to “the capacities and circumstances of those who are to be heard,” [citation] . . . to insure that they are given a meaningful opportunity to present their case.’ ” (Doe v. Regents of University of California, supra, 5 Cal.App.5th at 1078.)

“[A]n accused student has an interest 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 trivial, and it should be guarded against if that may be done without prohibitive cost or interference with the educational process.” (Doe v. Claremont McKenna College (2018) 25 Cal.App.5th 1055, 1066 [cleaned up].) “On the other hand, a formalized hearing process would divert both resources and attention from a university's main calling, that is education. Although a university must treat students fairly, it is not required to convert its classrooms into courtrooms.” (Ibid. [Cleaned up.])

Petitioner contends USC failed to comply with its own policies and procedures. Specifically, Petitioner argues USC did not provide him a fair hearing because Professor Spence failed to meet with him to discuss the alleged cheating and the evidence supporting the allegation.

“If the instructor . . . has reason to believe, based on observation or other evidence, that a student has violated the university’s academic integrity standards, they are encouraged to make reasonable attempts to meet with the student and discuss the alleged violation and the evidence which supports the charge. When necessary, such discussions may be conducted by telephone or electronic mail. . . . The student should be given the opportunity to respond to the allegation.” (AR 266 [§ 13.20, subd. I][emphasis added].)

Additionally, “[a]s soon as possible, the instructor . . . will provide the Office of Student Judicial Affairs and Community Standards with a completed Academic Integrity Violation Form. The reporting party likewise will make a reasonable attempt to provide a copy of the report to the student.” (AR 267 [Student Conduct Code, § 13.20, subd. III].)

It is undisputed Professor Spence made no attempt to meet with Petitioner or attempt to discuss the alleged violation with Petitioner or the evidence supporting the charge. (AR 39.) Nonetheless, the language of the Student Conduct Code does not mandate a meeting between the instructor and the student. Instead, the Student Conduct Code provides instructors are “encouraged to make reasonable attempts to meet with the student and discuss the alleged violation and the evidence which supports the charge.” (AR 267 [emphasis added].) Thus, nothing in the Student Conduct Code requires an instructor meet with and discuss the charges with a student prior to the instructor making a formal report to SJACS.

The Student Conduct Code, however, is somewhat more definitive about student access to the violation report submitted to SJACS. The Student Conduct Code specifies the instructor “will make a reasonable attempt to provide a copy of the report to the student.” (AR 267 [Student Conduct Code, § 13.20, subd. III].)

Professor Spence made his report of academic integrity violation to SJACS on June 2, 2021. (AR 5.) USC did not provide the report to Petitioner until his meeting with Dominguez. (AR 4. [“Student was email report via Onehub and confirmed viewing report”].)

On June 30, 2021—more than 10 days in advance of Petitioner’s meeting with Dominguez—SJACS provide Petitioner with the substance of Professor Spence’s report.[5] (AR 33-34, 73-74.) Specifically, SJACS advised Petitioner of the identity of the professor who made the report and the allegation Petitioner “was documented by USC IT services as having accessed an online shared document” during the one-hour examination period. (AR 73.) The SJACS notice also identified the course, the date of the specific exam, and the potential policy violations at issue.[6] (AR 73.)

As such, Petitioner received notice of the allegations sufficiently in advance of his July 12, 2021 meeting with Dominguez. (AR 4.) The court cannot find under the circumstances Professor Spence’s failure to make any attempt to provide his report to Petitioner prejudiced Petitioner. (Hinrichs v. County of Orange (2004) 125 Cal.App.4th 921, 928 [procedural errors, “even if proved, are subject to a harmless error analysis”] See Doe v. Occidental College (2019) 40 Cal.App.5th 208, 227. [“John does not identify any prejudice he suffered by not having the information from the hearing coordinator any sooner, nor does he argue what, if anything, he would have done differently with additional time to prepare for the hearing.”]; See also Doe v. University of Southern California (2018) 28 Cal.App.5th 26, 40. [delay in providing evidence of academic discipline not tied to prejudice].)

Petitioner argues—relying on Student Conduct Code section 13.20, subd. IV and general fair hearing principles—USC deprived him of a fair hearing because it did not provide Petitioner with access to the evidence USC would consider to determine whether he should be disciplined. Petitioner contends fair hearing notions required that USC provide him with access to the evidence prior to his conduct review meeting. Specifically, Petitioner argues he should have had advanced access to the Class Notes document and (what USC claims are) the IT logs. (AR 8-12 [IT logs].)

Petitioner notes he specifically asked “where USC IT services obtained the information,” but Dominguez did not answer Petitioner’s question. (AR 4, 26-27.)

Moreover, Petitioner suggests if USC had provided him with “access to the evidence before the SJACS Conduct Review meeting, he may have contacted a forensic expert, or perhaps the Electronic Frontier Foundation, to review the ‘IT logs,’ or at the very least, he could have provided [] Dominguez the articles about the overturned Dartmouth cheating investigations so she could perform additional review.” (Opening Brief 16:4-7 [citing Rosenblit v. Superior Court (1991) 231 Cal.App.3d 1434, 1447. [“It is impossible to speculate what defense he might have been able to offer if [the evidence] had been available for him and his experts, without the limitations imposed upon him.”])[7] Thus, Petitioner claims USC hampered him from presenting a full defense by failing to provide him with the evidence used against him until the conduct review meeting.

Based on the circumstances here, the court does not find Petitioner has demonstrated USC deprived him of a fair hearing based on its failure to provide him with access to the evidence until his conduct review hearing.

First, Petitioner knew the general nature of the allegations. The notice USC sent to Petitioner on June 30, 2021 advised him “USC IT services” “documented” Petitioner “as having accessed an online shared document” during an examination period. (AR 33.) Given that Petitioner took the examination, he would necessarily have understood the allegations—he accessed outside materials during his online examination. Petitioner also knew USC would have used a “program” to determine he had cheated. (AR 39.)

Second, Petitioner had more than 10 days between the date of his notice and his conduct review. Petitioner had an opportunity to have his computer examined and to provide his browser history and any other evidence to Dominguez. [8] Petitioner had an opportunity to consult with experts about the allegation. USC advised Petitioner through the Student Conduct Code he would have the opportunity to present evidence at his conduct review. (AR 34, 248.) Petitioner also had the opportunity when he met with Dominguez to “provide names of relevant witnesses and relevant information.” (AR 248.) Petitioner had the opportunity to “provide any information on his behalf” until the end of his meeting with Dominguez. (AR 42.) Thus, nothing prevented Petitioner from researching the issue (as he did for his appeal) and providing Dominguez with the news articles about the Dartmouth cheating incident. (See Opening Brief 9, n. 3 [news articles June 10, 2021].)

Third, and most importantly, Petitioner did not ask for an opportunity to provide evidence to undermine that presented by USC. Petitioner had that opportunity and did not avail himself of it. The Student Conduct Code specifically provides students with “the opportunity to request further review of the matter . . . .” (AR 268.) Instead, Petitioner expressly asked Dominguez to make an immediate decision about the matter—he advised Dominguez his parents wanted “ ‘a decision now.’ ” (AR 4.) Dominguez specifically asked Petitioner if he wanted a “decision now” as well. (AR 4.) Petitioner answered, “Yes.” (AR 4.) Consistent with the Student Conduct Code, Dominguez “considered” “the matter” “complete” and concluded the meeting. (AR 268. [“If no meeting or further review is requested, the matter will be considered complete and sanctions initiated.”])

Based on the circumstances, including Petitioner’s ability under the Student Conduct Code to request the matter be reviewed further, the court finds USC did not deprive Petitioner of a fair hearing based on a lack of access to the evidence.

Petitioner argues USC did not provide him with a fair and impartial proceeding. Specifically, Petitioner suggests USC improperly shifted the burden of proof and required to him to prove his innocence. Petitioner notes USC’s policies and procedures require the reporting party to prove Petitioner’s guilt. (AR 244.)

Under the Student Conduct Code section 10.30, subd. IV., a student is guaranteed “[a] fair and impartial review of the incident” (AR 248) where “[t]he burden of proof shall at all times rest upon the reporting party.” (AR 263; see also Parker v. City of Fountain Valley (1981) 127 Cal.App.3d 99, 113. [“It is axiomatic, in disciplinary administrative proceedings, that the burden of proving the charges rests upon the party making the charges.”])

Petitioner argues Dominguez made findings without interviewing Professor Spence and without interviewing or undertaking to learn the identity of the “USC IT services” personnel who provided Professor Spence with the documents Dominguez claimed were IT logs. Petitioner also notes Dominguez did not authenticate the IT logs, investigate how they were generated, or what the logs demonstrated. Professor Spence’s report of academic integrity violation summarized what he had apparently been told by USC’s IT services. (AR 7.)

Petitioner also argues Dominguez made no effort to collect the purportedly shared Class Notes document, nor did she take any apparent steps to verify the document’s existence. Petitioner also contends Dominguez did not attempt to collect a copy of the examination to determine whether the Class Notes document (assuming it existed) contained any information that may have assisted Petitioner with the examination.

Petitioner has not met his burden of demonstrating the proceeding was unfair. First, the record does not support Petitioner’s assertion that Dominguez improperly shifted the burden to Petitioner. Dominguez decided the IT logs established by a preponderance of the evidence that Petitioner had violated USC’s Student Conduct Code. Once Dominguez found that the evidence supported the charges against Petitioner, Dominguez then considered whether Petitioner’s denials and challenge to the to the evidence undermined the evidence provided by Professor Spence. Dominguez found the evidence supported the charges against Petitioner. (AR 1-3.) The Appeals Panel determined “a reasonable fact-finder could have found, by a preponderance of the evidence, that the student inappropriately accessed external sources when completing an online exam and attempted to gain an unfair academic advantage.” (AR 44.)

While Petitioner challenges the adequacy and the competency of the evidence, that challenge is distinct from a claim of an unfair proceeding because Dominguez allegedly shifted the burden of proof to Petitioner. Dominguez’s report suggests she found Professor Spence’s evidence persuasive and asked

That Dominguez found the IT logs sufficient on the issue of Petitioner’s guilt does not demonstrate an unfair hearing. Nothing in USC’s policies required Dominguez to investigate beyond the information provided by Professor Spence. That Dominguez undertook no independent investigation does not dictate a finding the process was unfair. While Dominguez might have interviewed Professor Spence about the allegations, Professor Spence was not a percipient witness with first-hand knowledge and Dominguez’s lack of interview of him does not demonstrate Dominguez was biased.[9] Dominguez relied on the IT logs provided by USC’s IT services. Dominguez did not, as suggested by Petitioner, rely on uncorroborated hearsay statements that Petitioner had engaged in cheating.

Petitioner has not demonstrated USC provided Petitioner with a procedurally unfair hearing based on the burden of proof of Dominguez’s alleged failure to undertake a more extensive investigation.

Finally, Petitioner argues USC’s findings leading to a decision he receive a grade of fail in BISC 220 are not supported by the evidence. Petitioner asserts USC’s findings are based almost entirely on incompetent evidence—Professor Spence’s report of academic integrity violation. Petitioner argues his evidence, including his browser history, is entitled to “greater weight.” (Opening Brief 18:19.) According to Petitioner, his browser history showed Petitioner opened no unauthorized tabs during the examination period. (AR 25, 31.)

Petitioner is critical of USC’s investigation into the facts. Petitioner argues Dominguez did not interview or speak with Professor Spence, and she did not conduct any additional investigation or fact-finding to verify the accuracy of any of the information reported by Professor Spence. Petitioner notes Dominguez did not interview anyone from USC IT services and did not authenticate the documents (the IT logs) Professor Spence attached to his report of academic integrity violation. According to Petitioner, given Dominguez’s failure to undertake any independent investigation, the evidence does not support USC’s findings Petitioner violated the Student Conduct Code.

As noted earlier, on substantial evidence review, “the trial court will affirm the administrative decision if it is supported by substantial evidence from a review of the entire record, resolving all reasonable doubts in favor of the findings and decision.” (M.N. v. Morgan Hill Unified School Dist., supra, 20 Cal.App.5th at 616.) The court must “accept all evidence which supports the successful party, disregard the contrary evidence, and draw all reasonable inferences to uphold the [administrative decision]. [Citation.]” (Doe v. Regents of the University of California (2016) 5 Cal.App.5th 1055, 1074.) “ ‘ “Substantial evidence” ’ is evidence of ponderable legal significance, evidence that is reasonable, credible and of solid value.’ ” (Doe v. University of Southern California, supra, 246 Cal.App.4th at 253.) “ ‘Very little solid evidence may be “substantial,” while a lot of extremely week evidence might be “insubstantial.” ’ ” (Rodenberry v. Rodenberry (1996) 44 Cal.App.4th 634, 651 [citation omitted].) “The ultimate test is whether it is reasonable for a trier of fact to make the ruling in question in light of the whole record.” (Id. at 652.)

Section 12.40 of the Student Conduct Code defines “Relevant Information” for USC’s disciplinary proceedings:

“Rules of evidence and discovery used by federal and state judicial proceedings shall not be applicable to reviews described in this Code. The review officer will consider information that is relevant, material, and temporally proximate to the conduct at issue; in other words, information that makes the existence of a fact or inference more or less likely.” (AR 263.)

Thus, USC’s policies and procedures did not preclude it from considering and relying on Professor Spence’s report and its IT log attachments.[10] In addition, depending on the circumstances, hearsay evidence in student disciplinary proceedings may be substantial evidence. (See Doe v. University of Southern California, supra, 246 Cal.App.4th at 253. [“Hearsay evidence that contradicts all firsthand accounts of what occurred is not substantial evidence to support a finding that John endangered Jane’s health or safety when he walked out of the bedroom.”]) “Under the substantial evidence test, the quality of the evidence is important.” (Ibid.)

Relying on the Supreme Court’s decision in In re Lucero L. (2000) 22 Cal.4th 1227, 1244-1245, Petitioner argues USC’s decision must be set aside. Petitioner contends “[t]he ‘IT logs’ do not demonstrate anything, ‘unequivocally’ or otherwise, and Professor Spence’s report is mere uncorroborated hearsay, which does not constitute even substantial evidence.” (Reply 11:1-3.) Given the context of and the legal issue raised by In re Lucero L., a dependency proceeding concerning the admissibility of an incompetent minor’s statements in a social study report, the court does not find the case particularly compelling in this context, an administrative proceeding where a student has received a failing grade based on hearsay and unauthenticated computer reports.

“In general, substantial evidence has been defined in two ways: first, as evidence of ponderable legal significance . . . reasonable in nature, credible, and of solid value; and second, as relevant evidence that a reasonable mind might accept as adequate to support a conclusion.” (Ogundare v. Department of Industrial Relations (2013) 214 Cal.App.4th 822, 830 [cleaned up].)

The court acknowledges Professor Spence’s report of academic integrity violation is hearsay under the Evidence Code. (AR 7.) The report notes he received an anonymous tip “students were using a shared google document of ‘Class Notes’ to cheat.” (AR 7.) The anonymous tip explains why Professor Spence referred the matter to USC IT services—IT services would have the expertise to provide him “with the names, dates, times and IP addresses of the students who used the google document during exam windows.” (AR 7.) Professor Spence attached to his report “those logs” from IT services. (AR 7.) A chart attached to Professor Spence’s report appears to summarize and condense what appear to be computer-generated spreadsheets. (AR 10-12.) The spreadsheets appear to indicate sections of an externally shared document on “Google Docs.” (AR 10-11, 54-59.) The item names suggest the item accessed (“WK4/5 Cell Communication; WK6: Metabolism) and the internet protocol address. (AR 10-11, 54-59.) The spreadsheets also indicate the date and time the externally shared document was accessed. (AR 10-12, 54-59.)

Professor Spence’s report describes where he obtained the spreadsheet information indicating Petitioner accessed outside information on his computer during the examination period—USC IT services. The documents appear to be the type of technical document that would be generated by an information technology department. (See AR 54-59.) Given the online nature of the examination and the allegations of accessing outside documents in a closed-book examination, using USC IT services to investigate appears appropriate. The internet protocol addresses as well as the date and time of alleged access is the type of information necessary to determine the veracity of the anonymous tip. The reports prepared at Professor Spence’s request are “relevant evidence that a reasonable mind might accept as adequate to support a conclusion” in this context. (Ogundare v. Department of Industrial Relations, supra, 214 Cal.App.4th at 830 [cleaned up].) Nothing suggests the reports are anything other than what they purport to be.

The IT logs support USC’s findings Petitioner violated the Student Conduct Code—sections 11.13.A (use of external assistance on an exam), 11.13.C (failure to comply with test protocols), and 11.21 (any act that gains or is intended to gain an unfair academic advantage).[11] (AR 250, 251.)

Finally, USC was well within its authority to reject of Petitioner’s competing evidence presented to the Appeals Panel—Petitioner’s browser history. The Appeals Panel specifically found the browser history Petitioner submitted to be unpersuasive because Petitioner could have used a different internet web browser, accessed the document from a different device, used a private browser, or deleted entries from the browser history. (AR 25-26.)[12]

Based on the foregoing, the court finds substantial evidence supported USC’s findings.

[1] USC proctored the examination using Zoom. (AR 62.)

[2] SJACS is the acronym for Office of Student Judicial Affairs and Community Standards. (AR 247.)

[3] The provisions address the use of external assistance during an examination and gaining an unfair academic advantage. (AR 1.)

[4] Petitioner’s position is not entirely clear. Petitioner notes the court uses its independent judgment when an agency’s decision affects a vested, fundamental right. (Opening Brief 11:13-16.) Petitioner also discusses the substantial evidence standard of review. (Opening Brief 11:20-21.) Petitioner’s argument, however, suggests the weight of the evidence does not support USC’s decision. (Opening Brief 18:19.)

[5] The SJACS communication did not provide Petitioner with the attachments Professor Spence had appended to his report of academic integrity violation. The attachments provided the evidence relied upon by Dominguez to find Petitioner violated the Student Code of Conduct.

[6] Based on his missing grade, Petitioner knew Professor Spence had referred the matter to SJACS. Thus, Petitioner knew Professor Spence believed Petitioner committed some wrongdoing.

[7] Rosenblit v. Superior Court, supra, 213 Cal.App.3d at 1434 involved the revocation of a physician’s hospital privileges. The physician repeatedly requested access to evidence so that his experts could address the hospital’s claims of poor clinical judgment. (See id. at 1438-1440.)

[8] Nothing prevented Petitioner from producing his browser history prior to or at the conduct review in response to the IT log evidence. In fact, Petitioner’s response to Professor Spence indicates he believed such information about his computer was relevant as early as May 2021—even before he was aware of the specific IT log created by USC. In his email to Professor Spence on May 15, 2021, Petitioner stated: “I can say that 100 percent I d[id] not cheat on the final exam. I need to know the allegations so I know how to defend myself. What program is USC using to allege that I cheated?” (AR 39.) When Professor Spence did not respond, Petitioner continued, “The only two tabs I had open during the final exam were Blackboard and zoom. I only had one computer open and all materials were cleared from my desk.” (AR 39.) Thus, Petitioner understood on some level the issue was whether he had opened another program.

[9] The court acknowledges Petitioner does not claim Dominguez was biased. Nonetheless, Petitioner’s argument does suggest as much.

[10] Petitioner’s authority, Walker v. City of San Gabriel (1942) 20 Cal.2d 879, 881, in the context of a city’s revocation of a license, recognizes unless specifically permitted by rule, hearsay evidence is not competent evidence in an administrative proceeding—“There must be substantial evidence to support such a board’s ruling, and hearsay, unless specifically permitted by statute, is not competent to that end.”

[11] As noted earlier, the IT logs showed Petitioner viewed a Google share document “WK4/5 Cell Communication” at 2:33:18 p.m., 2:35:13p.m., and 2:35:30 p.m. (AR 8-12.) The IT logs also showed Petitioner viewed a Google share document “WK6: Metabolism II” at 2:32:37 p.m. and “WK7: Photosynthesis” at 2:32:34 p.m. (AR 8-12.) The Google document titles suggest the content of the documents viewed was relevant to the biology examination. In addition, a reasonable inference can be drawn that the documents accessed were relevant to the examination given multiple access times during the one-hour examination period.

[12] The Dartmouth medical school cheating incident, while informative that errors can be made, is not directly relevant here.